UNIVERSITY 

OF  CALIFORNIA 

LOS  ANGELES 


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SCHOOL  OF  LAW 
LIBRARY 


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THE   PRACTICE 


IN 


CIVIL  ACTIOISrS 


COURTS    OF    RECORD 

OF   THE   STATE   OF   NEW"   TOBK 

UNDER   THE   CODE    OF   CIVIL 
PROCEDURE 


By   m^illiam   rumsey 

justice:   of   thb    supbkmei    court 


SECOND     EDITION",    REVISED     AND     EDITED    BY 

JOHN  S.  SHEPPARD,  JR. 


OF    THK     NBW     XOBE     BAR 


VOLUME  III. 


1904 

BANKS     &     COMPANY 

ALBANY,  NEW    TOKK: 


T 

190  a 


Copyright,  1890. 
BANKS  &  BROTHERS. 


Copyright,  1897. 
BANKS  &  BROTHERS. 


Copyright,  1904, 
By  banks  &  COMPANY. 


The  able  assistance  of  Mr,  George  S.  Sheppard,  of  the 
Penn  Yan,  N.  Y.,  bar,  in  the  preparation  of  portions  of 
this  volume,  is  most  gratefully  acknowledged. 

Dated  July,  1904. 

J.  S.  S.,  Jr. 


TABLE  OF  CONTENTS, 


CHAPTER  XLIX. 

EJECTMENT. 

PAGE. 

Article  I.  Nature  of  the  action  of  ejectment 1 

Sec.  1.  Origin   and  history    1 

2.  For  what  the  action  lies 3 

3.  What  title  necessary  to  maintain  action 5 

4.  What  may  be  recovered  in  the  action 8 

Article  II.  Parties  to  the  action 10 

Seel.  Who  may  be  plaintiffs 10 

2.  Who  may  be  joined  as  defendants 10 

3.  Change  of  parties    11 

Article  III.  Pleadings  and  proceedings   12 

Sec.  1.  The   plaintiff's   pleadings 12 

2.  The  defendant's  pleadings    14 

3.  Proceedings  in  the  action  16 

Subd.   1.  Proof  of  authority  to  bring  action 16 

2.  Provisional  remedies    18 

3.  Survey    18 

4.  Other  proceedings  before  judgment 18 

5.  Form  of  verdict 20 

6.  Judgment     21 

7.  New   trial    21 

8.  Opening  default    22 

4.  Effect  of  the  judgment   23 

Article  IV.  Proceedings  where  action  is  brought  for  rent  in  arrear.  25 

Sec.  1.  When  action  may  be  maintained 25 

2.  Payment  or  redemption  by  tenant 27 


CHAPTER  L. 

PARTITION. 

Article  I.  In  what  cases  partition  may  be  had 2& 

Sec.  1.  Nature  of  the  action 29 

2.  By  joint  tenants  or  tenants  in  common 31 

Subd.   1.  When  by  parol  or  agreement 31 

2.  When  by  action   33 


VI  TABLE  OF  CONTENTS. 

PAGE. 

Sec.  3.  By   remaindermman     38 

4.  By  an  infant     39 

5.  By  heir,  when  devise  claimed  to  be  void 41 

C.  Parties  to  the  action 42 

7.  Notice  of  pendency    46 

Article  II.  Proceedings  in  the  action  46 

Sec.  1.  The  complaint    46 

2.  The  answer    48 

3.  What  questions  may  be  raised . . , 48 

4.  How  issues  tried    50 

5.  Proceedings  upon  default 51 

Subd.   1.  Reference  to  ascertain  title 51 

2.  How  liens  ascertained   52 

3.  Proceedings  where  partition  cannot  be  made.  .  .  54 
Article  III.  Interlocutory  judgment     55 

Sec.  1.  What  to  contain    55 

2.  How  modified  or  changed   59 

Abticle  IV.  Commissioners  to  make  partition 59 

Sec.  1.  How  qualified  and  removed   59 

2.  How  to  proceed 60 

3.  Proceedings  where  there  is  a  particular  estate 62 

4.  Report  of  commissioners    62 

Article  V.  Proceedings  to  sell  real  property 64 

Sec.  1.  When  a  sale  will  be  ordered 64 

2.  Judicial  sale,  how  made 66 

Subd.  1.  Notice  of  sale   66 

2.  Duties  of  referee  or  officer  making  sale 68 

3.  Sale   69 

4.  Report  of  sale  73 

5.  When  sale  set  aside,  and  resale 74 

6.  Rights  and  duties  of  purchaser 77 

3.  How  purchase  money  secured   82 

4.  Costs  in  partition    83 

5.  Distribution  of  the  proceeds   84 

Subd.   1.  In  general    84 

2.  Where  party  is  an  infant,  or  unknown 87 

3.  Where  a  dower  right  exists 88 

4.  Where  liens  exist   90 

5.  How  invested  for  tenant  for  life,  etc 92 

Article  VI.  Final  judgment   93 

Sec.  1.  What  to  contain  93 

2.  Who   affected    by   final    judgment 94 

3.  Security  to  refund   97 

4.  Where  entered  and  recorded 97 

5.  Judgment,  how  enforced 98 

6.  Appeal  from  final  or  iiiterloi-utory  judgment 99 


TABLE  OF  CONTENTS.  VU 

CHAPTER  LI. 

ADMEASUREMENT  OF  DOWER. 

PAGE. 

Article  I.  How  action  brought 101 

Sec.  1.  History  and  nature  of  the  proceeding 101 

2.  Who  may  bring  the  action : 102 

3.  Who  are  proper  parties  defendant 103 

4.  What  may  be  recovered 104 

Article  II.  Proceedings  in  the  action 107 

Sec.  1.  Pleadings    107 

2.  Proceedings   before   judgment    '. 108 

3.  Interlocutory  judgment 110 

Subd.   1.  For  admeasurement  of  dower 110 

2.  For  sale  of  premises 112 

4.  Proceedings  before  commissioners 112 

5.  Report  of  commissioners  or  referee 115 

6.  Fees  and  expenses    116 

7.  Final  judgment     117 

Subd.   1.  After   admeasurement    117 

2.  After   a   sale    118 

3.  Stay  on  appeal   119 

8.  Right  of  widow  after  judgment 119 


CHAPTER  LII. 

FORECLOSURE  OF   MORTGAGES  AND  LIENS. 

Article  I.  Foreclosure  of  mortgage  on  real  estate 121 

Sec.  1.  History  and  nature  of  the  action  for  foreclosure 121 

2.  Remedies  of  the  mortgagee 124 

3.  Purpose  of  the  action   126 

Article  II.  Bringing  the  action   127 

Sec.  I.  In  what  court  to  be  brought 127 

2.  Place  of  trial    127 

3.  Who  may  be  parties    127 

4.  How  to  bring  the  action   128 

5.  Pleadings      129 

Article  III.  Proceedings  in  the  action 130 

Sec.  1.  Default 130 

2.  Trial      131 

3.  Provisional  remedies    132 

4.  Judgment     132 

5.  Tender  of  amount  due 137 

Article   IV.  Sale 138 

Sec.  1.  How  and  by  whom  nnide 138 

2.  Conveyance    141 

3.  Referee's  report  of  sale,  and  confirmation 143 


Viii  TABLE  OF  CONTENTS. 

PAGE. 

Article  V.  Proceedings  after  sale 144 

Sec.  1 .  Deficiency     144 

•J.  Distribution   of   the   surplus 146 

Subd.    1.  How  disposed  of  by  the  referee 146 

•2.  Filing  claim  to  surplus 146 

3.  Motion  for  reference 147 

4.  Proceedings  before  the  referee 149 

5.  Report  of  referee,  and  confirmation 151 

Article  VI.  Strict  foreclosure  of  mortgage 153 

Sec.  1.  History  and  use  of  the  proceeding 153 

2.  Proceedings   in  the  action 155 

Article  YII.  Foreclosure  of  liens  on  chattels 157 

Sec.  1.  When  and  where  maintained 157 

2.  Proceedings  in  the  action 158 

3.  Seizure  of  the  chattel 159 

4.  Proceedings  in  courts  not  of  record 160 

Article  VIII.  Foreclosure  of  mechanic's  liens  on  real  property. . . .  161 

Sec.  1.  In  what  courts  action  for,  may  be  brought 161 

2.  Parties      162 

3.  Proceedings  in  the  action 164 

4.  OfTer  to  pay  into  court 164 

5.  Judgment   165 

G.  Costs  and  disbursements 168 

7.  Discharge   of   lien 168 

8.  Actions  in  courts  not  of  record 169 


CHAPTER  LIIL 

OTHER  ACTIONS  RELATING  TO  REAL  PROPERTY. 

Article  1.  Action  to  determine  conflicting  claims  to  real  property.  .  173 

Sec.  1.  History  and  nature  of  the  proceeding 173 

2.  Who  may  be  plaintiffs 175 

3.  Against  whom  the  action  may  be  brought 177 

4.  Pleadings      178 

5.  Procedings  before   judgment 181 

•  6.  Judgment     183 

7.  New  trial   184 

S.  EfTect  of  judgment 185 

9.  Action  against  claimant  of  dower 185 

Article  II.  Action  for  Avaste 187 

Sec.  1.  What  is  waste 187 

2.  Remedies   for  waste 188 

3.  Who  may  be  plaintiffs 189 

4.  Against  whom  the  action  lies 190 

5.  Proceedings   in  the   action 191 

6.  Judgment     192 

7.  Action  bv  ioint  tenant  or  tenant  in  common 193 


TABLE  OF  CONTENTS.  IX 

PAGE. 

Article  III.  Action  for  a  nuisance   194 

Sec.  1.  The  remedy  for  a  nuisance 194 

2.  Against  whom  the  action  may  be  brought 196 

3.  Proceedings  in  the  action   197 

4.  Judgment    197 

Article  IV.  Action  against  persons  holding  over 198 

Article  V.  Action  by  joint  tenant  to  recover  his  share  of  rents  and 

profits      198 

Article  VI.  Action  for  timber  cut  by  trespasser 199 

Article  VII.  Action  against  forcible  ejectors 201 


CHAPTER  LIV. 

ACTION  TO  RECOVER  A  CHATTEL. 

Article  I.  When  it  will  lie 203 

Sec.  1.  In  what  case  it  may  be  brought 203 

2.  For  what  property  it  may  be  brought 210 

3.  Waiver  of  right  to  bring  replevin 212 

Article  II.  Proceedings  in  the  action 213 

Sec.  1.  When  and  how  commenced 213 

2.  Pleadings    and    proceedings 215 

3.  Verdict    218 

4.  Judgment     219 

Article  III.  Taking  the  property 222 

Sec.  1.  When  the  property  may  be  taken 222 

2.  Affidavit  and   requisition 223 

3.  Undertaking  by  plaintiff 227 

4.  Remedies   for  defective   papers 229 

5.  How  chattel  to  be  replevied 230 

6.  Custody  of  the  property  by  the  sheriff 231 

7.  Exception  to  plaintiff's  sureties 234 

8.  Redelivery  of  the  property  to  the  defendant 234 

9.  Justification  of  sureties 237 

10.  Action  on  the  undertaking 238 

11.  Claim  of  title  by  a  third  person 239 

12.  Second  and  subsequent  replevin 242 


X  TABLE  UF  CU.NTENTS. 

CITATTET^  LV. 

MATIMMONIAL   ACTIONS. 

PAGE. 

Article  I.  Jurisdiction  of  the  courts 245 

Article  II.  Action  to  annul  a  marriage 246 

Sec.  1.  Action  by  a  woman  married  under  the  age  of  sixteen 240 

2.  Action  bj'  either  party  to  annul  a  marriage 248 

Subd.   1.  liecanse    contracted    before    the    age    of    legal 

consent  249 

2.  13ecause  former  liusband  or  wife  of  one  of  the 

parties  was  living 250 

3.  That  one  partj'  was  an  idiot  or  lunatic 252 

4.  Where  consent  was  obtained  by  force  or  fraud.  253 

5.  For    impotency 256 

3.  Proceedings  in  the  action 257 

Article  III.  Action  for  a  divorce 203 

Sec.  1.  When  it  may  be  brought 203 

2.  Proceedings  in  the  action 209 

3.  Regulations  with  regard  to  tlic  judgment 276 

Article  IV.  Action  for  a  separation 285 

Sec.  1.  For  what  causes  an  action  for  a  separation  maj'  be  main- 
tained       285 

2.  Who  may  bring  the  action 289 

3.  Pleadings    290 

4.  Proceedings  in  the  action 292 

Article  V.  Custody  of  children,  and  allowances  jjending  action.  .  . .  295 

Sec.  1.  Custody  and  care  of  children 295 

2.  Alimony  and  counsel  fees 290 

Subd.   1.  In  what  cases  allowed 290 

2.  Application  for  the  order 302 

3.  The    order 304 

3.  How    payment   compelled 304 


CHAPTER  LVI. 

ACTIONS  KELATING  TO  COKl'OUATIONS. 

Article  I.  Actions  by  or  against  corporations 309 

Sec.  1.  Cases  in  which  actions  may  be  brought 309 

Subd.   1.  By  or  against  domestic  corporation 309 

2.  By  or  against  foreign  corporation 311 

3.  Against  trustees  or  other  officers  of  corporation  315 
2.  Pleadings   and    proceedings 319 


TAl'.LK   OF  rO.XTKXTS.  XI 

PAGE. 

Article  II.  To  dissolve  a  corporation,  or  enforce  liability  of  officer.  322 

Sec.  1.  When  action  may  be  brought 322 

2.  By    whom    brought 324 

3.  Proceedings  in  tiie  action 327 

Subd.   1.  Temporary    injunction 327 

2.  Receiver    330 

3.  Accounting     334 

4.  Advertising  for  claims 334 

5.  Compelling  stockholder,  etc.,  to  testify 336 

6.  Amendment    of    pleadings    for    misjoinder    of 

parties      336 

4.  Judgment     337 

5.  Application  of  certain  sections 339 

Article  III.  Action  to  annul  a  corporation 340 

Sec.  1.  In  what  cases 340 

2.  Proceedings  in  the  action 343 

3.  Final    judgment 344 


CHAPTEK  LVII. 

ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT. 

Article  I.  Action  by  or  against  executors  or  administrators 347 

Sec.  1.  In  what  way  action  may  be  brought  by  or  against  them.  .  347 

2.  Action  for  legacy  or  distributive  share 350 

3.  Regulations  respecting  action  by  or  against  executors  or 

administrators      352 

Subd.   I.  Procedings  in  the  action 352 

2.  Judgment   and  execution 355 

3.  Effect  of  judgment 356 

4.  Effect  of  judgment  against  heir  or  devisee  for 

same    cause 357 

4.  Limitation  of  action  on  disputed  claim 357 

Article  II.  Reference  of  claims  against  estate  of  decedent 360 

See.  1.  What  claims  may  be  referred 360 

2.  How   reference   procured 362 

3.  Procedings  upon  the  reference 364 

4.  Procedings  upon  the  report 367 

5.  Costs 368 

Article  III.  Action  by  creditor  of  decedent  against  next  of  kin, 

legatee,  heir  or  devisee 369 

Sec.  1.  When  the  action  lies 369 

2.  Regulations  with  regard  to  actions  against  next  of  kin  and 

legatees    373 

Subd.  1.  Who  are  proper  parties   373 

2.  Pleadings  and  proceedings   374 

3.  Judgment     376 


Xii  TABLE  OF  CONTENTS. 

PAGE. 

Sec.  3.  Regulations  with   regard   to  actions  against  devisees  and 

heirs-at-law     377 

Subd.  1.  Who  should  be  parties  377 

2.  Conditions  precedent  to  the  action 379 

3.  Pleadings  and  proceedings   380 

4.  Judgment     383 

4.  Preference  of  debts    384 

Article  IV.  Action  to  establish  a  will 385 

Sec.  1.  When  such  an  action  may  be  brought 385 

2.  Who  are  proper  parties 387 

3.  Pleadings  and  proceedings   388 

4.  Judgment     390 

Abticle  V.  Action  for  the  construction  of  a  will 392 

Article  VI.  Action  determining  validity  of  probate  of  a  will 395 

Sec.  1.  When  and  by  whom  the  action  may  be  brought 395 

2.  Proceedings  in  the  action  398 

3.  Judgment  in  the  action    399 


CHAPTER  LVm. 

JUDGMENT  creditor's  ACTION. 

Article  I.  When  it  may  be  brought 403 

Sec.  1.  For  what  purposes    403 

2.  In  what  cases  the  action  may  be  maintained 408 

Article  II.  Proceedings  in  the  action 415 

Sec.  1.  Parties    415 

2.  Summons   and    pleadings 419 

3.  Lien  of  the  plaintiff 421 

4.  Injunction  and  receiver   424 

5.  Discovery    427 

6.  Trial  and  judgment  428 


CHAPTER  LIX. 

ACTIONS  BY  OR  AGAINST  PARTICULAR  PARTIES. 

Article  I.  Action  by  or  against  unincorporated  association 435 

Sec.  1.  By  or  against  whom  brought 435 

2.  Judgment  in  such  action   440 

3.  Action  against  member,  after  execution  against  the  asso- 

ciation returned  unsatisfied 441 


TABLE  OF  CONTENTS.  Xlll 

PAGE. 

Article  II.  Taxpayer's  action  to  prevent  waste 444 

Sec.  1.  Who  may  maintain  such  action,  and  for  what 444 

2.  Security  by  plaintiff    452 

3.  Who  must  be  defendants 453 

4.  Proceedings  in  the  action   454 

5.  Judgment     455 

Article  III.  Action  against  or  between  joint  debtors 456 

See.  1.  Judgment  against  joint  debtors,  whe«  all  not  served 456 

2.  Action  to  charge  defendants  not  summoned 460 

Subd.  1.  When  such  action  may  be  maintained 460 

2.  Pleadings  and  proceedings   462 

3.  Judgment     465 

3.  Action   against  partner   not   sued 466 

4.  Continuance  of  business  during  action  for  partnership  ac- 

counting        466 

counting    466 

Article  IV.  Compromise  by  joint  debtors 467 


CHAPTER   LX. 

ACTION   AGAINST   USURPER  OP  AN   OFFICE   OR   FRANCHISE. 

Article  I.  When  action  may  be  maintained 473 

Sec.  1.  Nature  of  the  action 473 

2.  In  what  cases  it  may  be  brought 476 

Article  II.  Proceedings  in  the  action   483 

Sec.  1.  Parties  and  pleadings   483 

2.  Place  of  trial 488 

3.  Order  of  arrest  488 

4.  Temporary  injunction    489 

5.  Trial  of  issues    489 

6.  Judgment     491 

7.  Assumption  of  office,  and  demand  of  books 493 

8.  Costs      495 


CHAPTER  LXI. 

SUPPLEMENTARY   PROCEEDINGS. 

Article  I.  In  what  cases  supplementary  proceedings  may  be  had .  .  497 

Sec.  1.  Nature  and  object  of  the  proceeding 497 

2.  When  order  may  be  granted 500 

Subd.  1.  In  general    500 

2.  After  the  return  of  an  execution 509 

3.  After  issue  and  before  return  of  execution 514 

4.  Against  third   person,  etc 515 


Xiv  TA15L10  OF  CONTENTS. 

PAGE. 

Sec.  3.  Before  what  judge  proceedings  had 519 

4.  The   affidavit   522 

Suhd.   1.  To  obtain  (irdor  for  exaniination  522 

2.  Affidavit  to  obtain  warrant  of  arrest 531 

5.  Warrant  of  arrest   534 

Subd.   1.  In   what  cases   issued 534 

2.  How   vacated   or   moditied 535 

3.  Undertal<ing  on  arrest 535 

6.  The    order    536 

Subd.   1.  \Miat   to  contain    536 

2.  Service  of  the  order 540 

3.  Effect  of  the  order   542 

4.  How  order  vacated  or  modified 543 

5.  How  order  apjjealed  from  in  certain  cases 5415 

7.  The   injunction    548 

Subd.   1.  What   to   contai^i 548 

2.  Upon  what  papers  injunction  granted 550 

3.  Ef1"ect  of  the  injunction 550 

4.  How  injunction  vacated  or  modified 552 

Article  II.  Proceedings  before  referee   554 

Sec.  1.  The   referee 554 

Subd.   1.  When  referee  may  be  appointed 554 

2.  How  referee  qualified 556 

2.  Powers  and  duties  of  referee 557 

3.  Hearing  before  referee    559 

4.  Examination  of  witnesses    500 

Subd.   1.  Scope  and  nature  of  such  examination 560 

2.  How  witness  compelled  to  testify 563 

3.  Effect  of  refusal  to  testify,  and  of  other  con- 

tempts        564 

5.  Report  of  referee   569 

Subd.  1.  What  to  contain   569 

2.  In  case  of  contempt  570 

3.  Effect  of  report    571 

Article  III.  Order  requiring  delivery  of  the  property 571 

Sec.  1.  By  judgment  debtor  or  third  person 571 

2.  By  one  indebted  to  judgment  debtor 575 

3.  Duty  of  sheriff  receiving  property 577 

Article  IV.  How  proceedings  discontinued   579 

Sec.  1.  In  what  cases  discontinuance  may  be  had 579 

2.  Second  order   for   examination 580 

3.  Costs  in  supplementary  proceedings 581 

Subd.   1.  To  the  judgment  creditor 581 

2.  To  the  judgment  debtor  or  third  person 583 


TABLE  OF  CONTENTS.  XV 

PAGE. 

Article  V.  The   receiver    

Sec.  1.  When  and  by  whom  appointed 584 

2.  Application  for  the  order 587 

Subd.  1.  Notice  of  the  application 587 

2.  What  papers  required  on  application 589 

3.  The   order    590 

Subd.  1.  Form  and  contents    590 

2.  Filing  and  recording  the  order 590 

4.  Security  to  be  given  by  receiver 592 

5.  What  property  vests  in  the  receiver 593 

6.  When  title  of  receiver  extends  back  by  relation 600 

7.  Extending  receivership    ^^2 

8.  Control  of  court  over  receiver 603 


TJ^BLE  OF  Ci^SES. 


A. 

Acker  v.  Hautemann 

Ackley  v.  Dygert 

Adams  v.  Becker 

Adams  v.  Fassett 

371,  374,  379, 

Adams  v.  Welsh 

Adee   v.    Bigler 

Adsit  V.  Butler 

Aikin  v.  Benedict 

Aikman  v.  Harsell 102, 

Ainslie  v.   Mayor,   etc ...... 

Akely  v.  Akely 

Albany  Belting,  etc.,  Co.  v. 

Grell 

Albany  City  Bk.  v.  Scber- 

merborn   

Albany  Nat.  Bk.  v.  Gaynor 

586, 

Albright  v.  Kempton.  .572, 

Aldrlch  V.   Lapbam 

Alexander  v.  Alexander... 

Allen  V.  Clark 

Allen  V.  Crary 

^  lien  V.  Judson 

Allen    V.    Starring 

Allyn  V.  Thurston 

Alvord  V.  Beach 

Alvord  V.  Haynes 

Alvord   V.    Hetsel 

Alvord  V.  Syr.  Sav.  Bk. .. . 
Alyea  v.  Cits.  Savs.  Bk... 
163, 
Am.  Bible  Soc.  v.  Hebard . . 
Am.  Ins.  Co.  v.  Oakley. 69, 
Am.  Mort.  Co.  v.  Butler .... 

Am.  Tool  Co.  v.  Smith 

Anderson  v.  Anderson.... 
387,  392,  394, 


PAGE. 

PAGE. 

Andrews        v.        Glenville 

214 

Woolen  Co 

586 

44 

Andrews  v.  Mastin 501, 

527 

394 

Andrews  v.  O'Mahoney. . . . 

71,  133, 

140 

382 

Andrews  v.  Rowan 

597 

577 

Anon 254,  272,  287, 

583 

4i:i 

Anway  v.   David 538, 

555 

412 

Appleton   V.   Warner 

251 

4 

April  V.  Beard 

438 

108 

Archer  v.  Archer 

75 

24 

Archibald  v.  N.  Y.  C.  &  H. 

364 

R.    R.    R.    Co 

Ai'ctic  F.  Ins.  Co.  v.  Hicks 

16 

233 

539, 
Armstrong  v.    McKelvey.  . 

544 

422 

374,  375,  377, 
Armstrong    v.    Union    Col- 

378 

597 

lege  

103 

573 

Arnoiix   v.    Homans    

548 

129 

Aschemoor  v.   Emmvert... 

560 

100 

Asendorf    v.    Meyer 

135 

442 

Ashley   v.   Turnei' 

588 

209 

Asinari  v.   Volkening. .  .71, 

141 

221 

Aspinwall  v.   Balch 

80 

558 

Atherton  v.  Atherton 

258 

419 

Atkinson,    Matter   of 

388 

67 

Atkinson  v.  Sewine 

551 

207 

Atty.  Gen.  v.  Bk.  of  Niag- 

13 

ara  

342 

451 

Atty.   Gen.  v.   Continental, 

etc.,  Co 

335 

167 

Atty.  Gen.  v.  L.  &  F.  Ins. 

351 

Co 

335 

75 

Atty.  Gen.  v.  North  Am.  L. 

152 

Ins.  Co 

329 

229 

At  water  v.  Atwater 

Auburn  Button  Co.  v.  Syl- 

289 

396 

vester  

323 

(xvii) 


XVI 11 


TAIiLK    OF    CASKS. 


PAGE. 

Aucibacli  V.  :N[iuks 220,  239 

Aultuiau   &  Taylor  Co.   v. 

Syme 412,  W"* 

Austin  V.  AheariK' 53 

Austin   V.   Barnes 543 

Austin  V.  Figueira 417 

Austin  V.  Schluyter 13 

Austin  V.  Slocum 400 

Ay  res    v.    Lawrence 

444,  448,  449 


B. 


Bacli  V.  Now 201 

Bacli  V.  Tueh 213,  218 

Bache  v.  Doscber.  .G9,  144,  145 

Baclcus,   Matter  of 565 

Bacon  v.  Frisbio 504 

Bailey    v.    Briggs 393 

Bailey  v.    Lane oSO 

Baker  v.  Brundage 580 

Baker  v.  Herkimer.  ..  .545,  547 

Baker  v.   Hoag 207 

Baker  v.  Howard 142 

Baker  v.  Kenwortby 578 

Baker   v.    Potts 412 

Baker  v.  Van  Epps 599 

Baldwin   v.   Eazler 604 

Baldwin  v.  Humpbrey 35 

Ball  V.   Goodenougb.  ..584,  590 

Ballon  V.  Boland 423,  553 

Banker   v.   Banker 253 

Bank  of  China  v.  Morse.  .  314 
Bank  of  Montreal  v.  Glea- 

son 425 

Bank   of    Poughkeepsie    v. 

Ibbotson 469 

Bank  of  Rochester  v.  Em- 
erson      410 

Bank  for  Savings  v.  Hope.  539 

Banks    v.    Potter 592,  593 

Bannerman     v.     Quacken- 

bush 456 

Banyer  v.   Empie 13 

Barber  v.   People 563 

Barbig  v.   Kick 164 

Barker   v.    Binnigor 208 


PAOE. 

BMrk(>r  v.   Miller 2(>8 

Hiunanl  v.  Onderdoiik.  .43,  48 

liarmml  v.  Simnis.  17.".,  180,  182 

Karnes   v.    Liglit 7 

Barnes    v.    McCnire 452 

Barnes  v.  Morgan 574 

Ba  rnet  t   v .    M  <  i  o  re 58*  t.  589 

Barnett   v.    Selling 

207,  211,  214-215 

Ilartii    V.    Itartli 254 

Bartlett   v.   Bartlett 259 

Bartlett  v.   McNeil 5<H 

Bartlett    v.    Musliner KtS 

Barton  v.  Donnelly 2;!9 

Bartow  v.  Cleveland l.')7 

Bartow  v.  Draper 0 

Batcbeldor  v.  Nugent 507 

Bates   V.   Schroeder 190 

Bath     Gas    Light     Co.     v. 

Rowland 463 

Batterman  v.  Albright 127 

Baumler   v.    Ackerman....  513 
Beadlestou  v.  Beadleston .  . 

272,  282,  297.  300,  ;;()1 

Beals   V.    Stewart 3 

Bean  v.  Tonnelle 

500.   501.  528 

Beard  v.  Snook 566 

Bcckstdu    V.    Scliultz 72,  138 

Becker    v.    Becker 249,  509 

Becker,    Matter   of 567 

Becker  v.  Torrance 595 

Beebe  v.  Elliott 2-1 

Beebe   v.   Griffing 58 

Beebe  v.   Kenyon 568 

Belgard   v.    :McLaughlin. .  . 

420,  431 

Bell  V.   Gittere SI.  96 

Bell  V.  Mayor,  etc 105.  114 

Belmont  v.   Erie  Ry.   Co..  316 

Benedict  v.  Gollraan 154 

Benjamin  v.  Myers 602 

Bennett  v.  Austin 72 

Bennett'  v.  McGuire 419 

Rerdell    v.    Berdell 7 

Bergen  v.  Backhouse V.'.O 

Berlin  v.   ILtII 464 


TABLE   OF    CASES. 


XIX 


PAGE. 

Beruliardt  v.  Lymburner.  .  139 

Bei'ulieimei*  v.  Kelliher.  . .  .  566 

Bertschy   v.   Bertschy 299 

Best'  V.  Zeh 42 

Betz    V.    Betz 268 

Bickuell  v.  Byrnes 74,  76 

Bierstadt    v.    Bierstadt 290 

Bigelow  V.  Bailey 151 

Bihin  v.  Biliin 287 

Billings    V.    Carver 541 

Billington  v.  Billiugton.  . .  .  547 

Bing-ham    v.    Disbrow 

520.   526,  541,  555,  586 
Bingham    v.    Marine    Nat. 

Bk 348 

Binghamt'on    Trust    Co.    v. 

Grant 524 

Birnbaum  v.  Thompson...  576 

Blake   v.    Crowley 158,  160 

Blakeley  v.   Calder 33,  39 

Blakeslee      Mfg.      Co.      v. 

Blakeslee's    Sons 3 

Bleck   V.    Bleck 266 

Bliven  v.   Pern   Steel   «fc   1. 

Co 323 

Blood    V.    Kane 349 

Bloodgood  V.  Bloodgood .  . .  259 

Bloodgood  V.   Clark 426 

Bloom    V.    Bnrdick 14 

Blott  V.   Rider 262 

Board  of  Pub.,   Matter  of, 

Trustees   of 503,  572 

Boessneek    v.    Bab 237 

Bogardus  v.  Parker.  ...  43,  47 

Bohmer   v.    Haffner 451 

Bokel   V.   Bokel 276 

Bolles  V.  Duff 125,  153 

Belles,    Matter  of 302 

Bond  V.  McNiff 90 

Booth  V.  Fordham 37 

Boston  Base  Ball  Assn.  v. 

Bklyn.    Base   Ball    Club.  482 

Bostwick  V.  Menck 597,  598 

Boswortli  V.  Allen 317 

Bouton    V.    Thomas 189 

Bowden  v.   M'Leod 317 

Bowe   V.    Arnold 408 


PAGE. 

Bo  won  V.   Idley .386 

Bowen    v.    Sweeny 42 

Bowers    v.    Durant 34,  40 

Bowery  Sav.  Bk.  v.  Foster  99 

Bownt'    V.    Lynde 1.39 

Boyd  V.  Boyd 0 

Boyd    V.    Dunlap 431 

Boyd,   Ex  parte 506 

Boyd    V.    Gernanit 438 

Boyd  V.  Stewart 164 

Boyleston  v.  Wheeler 176 

Boynton    v.    Jackson 99 

Boynton   v.    Rawson 423 

Brackett   v.   Baum 114 

Bradley,  Matter  of 480 

Bradt   v.   Church 11,  24 

Brady  v.   McCosker 387 

Braekeleer      v.      Schwabe- 

land 218 

Branch    v.    Harrington....  599 

Brand,   Matter  of 400 

Brates   v.   Hopper.  .  .  .    370,  372 

Brawner  v.  Fahy 220 

Brennan  v.  Brennan 299 

Brenner,    Matter   of 495 

Breslin  v.   Peck 470 

Brevoort    v.    Brevoort 39 

Brewer,  Matter  of 10 

Brewster    v.    Silliman 237 

Briggs   V.    Merrill 432 

Briggs  V.  Oliver 157 

Briggs  V.  Wells 24 

Briukerhoff  v.  Marvin 466 

Brinkley  v.  Brinkley 297 

Brockett  v.   Bush 361 

Brockway  v.  Btu-nap 205 

Broderick  v.  Archibald.... 

573,  575,  576 

Brogan   v.  Ilanan 470 

Brondage  v.   Warner 5 

Bronson  v.  Fitzhugh 468 

Brooks  V.   Ackerly 81 

Brooks    V.    Stone 425 

Brown  v.  Brown 51 

Brown  v.   Coddington 35 

Brown  v.   Crabb 176 

Brown  v.   Danforth 163 


XX 


TABLE   OF   CASES. 


PAGE. 

Brown    v.    Frost 76 

Brown   v.   Gump 502 

Brown    v.    T.oifrli 181 

Brown,   Matter  of 358,  508 

Brown  v.   Nichols 423,  427 

Brown   v.   Volkenlng 128 

Brown  v.  "Williams 4G8 

Brown  v.  Woodworth 105 

Browne,   Matter    of 361,  4G9 

Browninjr  v.  Chadwlck.  . .  .  567 

Browning    v.    Hayes 530 

Browning  v.  Marvin 556 

Bruen    v.    Nichols 530 

Bryant  v.  Grant 400 

Buchanan    v.    Belsey 300 

Buchanan  v.  Hunt 575 

Buchholz  V.  Buchholz.  270,  203 

Buck!  V.  Buckl 306,  517 

Buckland  v.  Gallup 348 

Bucklin   v.   Chapin 

362,  SaS,  364,  365 

Bull  is  V.  Montgomery.  .224,  227 

Bullwinker  v.  Ryker.47,  50,  03 

Bunn  V.  Daly 586,  507 

Burch    V.    Burch 272 

Burdell  v.   Burdell 18 

Burhans  v.  Burhans 40 

Burnett  v.   Gould 362 

Buruhani    v.    Burnham....  378 

Burnham,   Matter  of 163 

Burnham    v.    Onderdonk.  .  174 

Burke  v.  Burke 501,  506 

Burke  v.   Thillips 464 

Burns  v.  Bobbins. 225,  228.  220 

Burr  V.    Burr 280.  202 

Bunis  V.  Burtis 24.5,  2.56 

Bush   V.    Coler 447 

Bush  Y.  O'Brien 447.  4.50 

Bush    V.    White 503 

Bushwick      Savs.     Bk.     v. 

Traunt 151 

Buswell  V.  Lincks 413,  422 

Butler  V.   Baudouinc 400 

Butler  V.  Hemstead 3.56 

Butler  V.  .Tohnson .3.51 

Butler  V.  Viele 410 

Butts  V.  Wood 317 

Byrne.  Matter  of 125 


PAGE. 

Oafrser  v.  Lansing 2 

Calm  V.  Cahn 2.57 

Callioun    V.    Willanl..    440,  451 

Calkins    v.    Packer .576 

Callahan.  Matter  of 358 

Canibrelleng  v.  Purton....  78 

Camden  v.  Mayhew 141 

Cameron,  Matter  of 386 

Campbell  v.  Fish 596 

Campbell    v.    Genet 551 

Campbell  t.  Holland 431 

Cauda   v.    Gollner 567 

Candec  v.  Burke 7 

Canfield  v.  Ford 44 

Carl>erry   v.    Phmis .34 

Card    V.    Putney 115 

Cardwell  v.  Cardwell 269 

Carley   v.    Tod .517 

CariM'Uter  v.  Allen 17 

Carpenter  v.  O.  &  S.  R.  R. 

Co 4 

Carpenter  v.  Osborn 411 

Carr    v.    Can* 7 

Castle.  Matter  of 85 

Catholic  Univ.  v.  Conrad..  .589 
Cattaberry   v.    Knox.    Mat- 
ter of 160 

Cazet  V.  Hubbell 74 

Chadi'ayne  v.  Gwyer.  .  400,  .504 

Chamberlain    v.    Dempsey.  1.34 

Chamberlain  v.  Gallup....  547 

Chamberlain  v.  Taylor.  ...  10 

Chamberlaine  v.  Choles...  99 
Champlain  &   St.   I^.    U.   R. 

Co.   v.    N'alcntine 3 

Champlin   v.   Stodart 562 

Chandler  v.  Powers 418 

(chapman  v.  Andrews 2^)7 

("liapman  v.  Boetcher 75 

Chapman   v.    D.,   L.   &    W. 

R.  R.  Co 13 

Chautauqua     Co.     Bk.     v. 

Risley 420.  430 

Chautauqua     Co.     Bk.     v. 

White 400 

Cheesmau  v.  Thorne 45 

Child   V.    Brace 4V2,  417 


TABLE   OF   CASES. 


XXI 


PAGE. 

Child  V.   Chappell 3,  5 

Chipman  v.  Montgomery. .  393 

Chittenden  v.  Worster. . . .  447 
Christiansen  v.  Mendham . . . 

221,  239 
Christie  v.  Bloomingdale. . 

22,  23 

Church   V.   Church 276 

Church  V.  Frost 237 

Church  V.   Seeley 26 

Ciancimino  v.   Man 482 

Cits.   Sav.   Blj.   V.   Bauer. ,  131 

City  of  Buffalo  v.  Macliey.  475 

City  of  N.  Y.  V.  Thorley. .  194 
City     of     Roch.     v.     Bell 

Teleph.   Co 194 

City  of  Utlca  v.  Utica  Tel. 

Co 194 

Claflin  V.  Gordon 416,  431 

Claflin  V.  Maguire 432 

Clark    V.    Battorf 119 

Clark  V.  Brockway 427 

Clark  V.  Clark 40,  588 

Clark  V.   Dakin.  .    , 414 

Clark  V.  Gilbert 595.  602 

Clark   V.   Poor 387 

Clark  V.  Sawyer 387 

Clarke   v.    Clarke 254 

Clapp  V.  Guy 477 

Clapp  V.  Hunter 50 

Clapp  V.  Lathrop 561 

Clason  V.  Baldwin 9,  14 

Clason  V.  Corley 82 

Clason  V.   Stewart 176 

Clay  V.  Clay 276 

Clayton,  Estate  of 351 

Clearman  v.  Clearman .  288,  289 

Clemens  v.  Clemens 96 

Clements   v.    Griswold.136,  142 

Cleveland  v.  Crawford 176 

Cleveland  v.   Johnson 513 

Clift   V.    Moses 378,  431 

Clover,  Matter  of 601 

Coates  V.   Cheever 115 

Coates  V.  Fairchild 79 

Cochran  v.  Am.  Opera  Co.  .  420 

Cochran  v.  A.  S.  Baker  Co.  333 


PAGE. 

Cochran  v.  Gottwald 220 

Coddington  v.  Larner 253 

Coe  V.  Coe 367 

Cogswell  V.  N.  Y.,  N.  H.  & 

H.  R.  R.  Co 195 

Cole  V.  Bickelhaupt 190 

Cole  V.  Tyler 429 

Colgan  V.  Dunne.  .370,  371,  374 

Collier  v.  De  Revere 522 

Collier  v.   Miller 372 

Collins  V.  Beebe 356 

Collins  V.  Combs 251 

Collyer  v.  Collyer 389,  390 

Colton  V.  Raymond 436 

Columbian  Inst.  v.  Cregan  573 

Combs  v.  Combs 251 

Commerce  Exch.  Nat.  Bk. 

V.  Blye 212,  216,  237 

Com.  Bk.  of  Lake  Erie  v. 

Meach 417 

Compt'on  V.  "The  Chelsea"  201 

Comstock  V.   Olmstead 363 

Congregational      Unitarian 

Soc.  V.  Hale 351 

Conhocton    Stone    Road    v. 

B.,  N.  Y.  &  E.  R.  R.  Co.  197 

Conkling  v.  Weatherwax. .  352 

Conover's  Case 495 

Conroy,  Exr.,  v.  Claffy 390 

Cons.    Ice    Co.    v.    Mayor, 

etc.,  of  N.  Y 175 

Conte  V.  Conte 247,  249 

Continental  Tr.  Co.  v.  Wet- 
more  306 

Converse  v.  Miner 365 

Conway  v.  Kitchens.  .  524,  527 
Cook    V.    Wardens    of    St'. 

Paul's    Ch 13 

Coonley,  Matter  of 359 

Corbin   v.   Baker 72,  96 

Corn  Exch.  Bk.  v.  Blye.  . .  . 

207,   208,   210,   223,  235 

Cornes   v.    Wilkin.  .• 

358,  359,  361,  365 

Corning  v.  Stebbins 513 

Corning   v.    Tooker 562,  564 

Corning  v.  White 424 


XXll 


TABLE   OF   CASES. 


PAGE. 

Corwitbe  v.  Griffing 4G,  Gl 

Cosjrriff   V.   Dewey 191 

Cosgriff   V.    Foss 50 

Couch  V.  Mills 468 

Coursen  v.  Dearborn 545 

Coiirtois  V.  Ilarrisou 544 

Cowau   V.   Cowan 265 

Cowdrey  v.    Carpenter. 542,  548 

Cox  V.  Cox 292 

Craiu  v.  Cavana 280 

Cramer  v.  Blood 419 

Crane  v.    Crauitcli 460 

Crane  v.  Stiger 76,  79 

Crary  v.  Goodman 16 

Creque   v.    Sears 14 

Cresson  v.  Stout 211 

Crewe  v.   Crewe 266 

Crill   V.   Kornmeyer 50S 

Cripi)en  v.  Hudson. ..  .409,  413 

Croclcer   v.    Crocker 285 

Crocker  v.  Gollner 82 

Crogau   V.   Livingston 40 

Crombie  v.  Rosenstock.  . .  .  147 

Cromer  v.  Pinckney 351 

Cromwell  v.  Hull 44 

Croner  v.  Cowdrey 15 

Crook  V.  Findley 604 

Cropsey  v.  McKinney 251 

Cropsey  v.  Ogden 283 

Grossman    v.  AYyckoff 83 

Crounse  v.  AYliipple , 

507,  518.  561' 

Grouse  v.   Pi'othingham . . .  414 

Grouse  v.  Wheeler 520 

Crouter  v.   Crouter....   40,  81 

Crow  V.  Crow 292 

Gullen  V.  Miller 234 

Gummings  v.  Timberman.  .  503 

Cunningham  v.  Cassidy...  70 

Cunningham    v.    Parker.  . .  384 

Cutting  V.   Damerel 338 

D. 

Dailey  v.  Dailey 293 

Dale  V.   Gilbert 2.36 

Dambmann  v.  Empire  Mill  325 


PAGE. 

Danvers  v.   Dorrity 34 

Darviu  v.  Hatfield 80 

•'Davenport  v.  Kelly. . .  422,  426 

Davidson   v.    Horn 508 

Davidson     v.     John     Good 

Cordage  Go 329 

Davis  V.   Bruus 410,  506 

Davis    V.    Davis 

285,  288,  294,  302,  305 

Davis  V.   Herrig 500 

Davis  V.   Leopold 432 

Davis  V.  Read 180 

Davis  V.  Turner.  .498,  536,  582 

Day  V.  Brosnan 537 

Day  V.   .Tolmson 69,  134 

Day  V.  Lee 516 

•'Day   V.   Ogdensburgh,  etc., 

li.  E.  Co 339 

Day  V.  Town  of  New  Lots. 

133,  146 

Do  Agrcda  v.  Mautcll 146 

Dean  v.   I-:idridge 460 

Dean    v.    Gilbert 438 

Dean  v.  Hyatt 566 

■Deane  Steam  Pump  Co.  v. 

Clark 167 

Dease  v.  Reese 585 

De  Gamp  v.  Dempsey 585 

Decker   v.    Anderson 239 

Decker  v.   Decker 406,  411 

Decker  v.   Kitchen 404,  466 

Decker  v.   Matthews 210 

De  Crane  v.  Moore 

350,  370,  371,  381 

De  Forest  v.  Farley 80 

De  Graw  v.  Glason 406 

..•  Deisler   v.   Deislei- 267,  291 

Delabarre  v.    McAlpin 387 

Delafield  v.  Kinney 440 

Delaney  v.   Blizzard 196 

De  Leon.  Matter  of 517 

De  Lisle  v.  Hunt 8 

De    Llamosas    v.    De    Llla- 

.     mosas 297,  3O0 

Delmar  v.  Delniar 400,  401 

Demarest  v.  Wickliam....  478 

De   I>(iiig  V.  ('urlis 470 


TABLE   OF   CASES. 


XXIU 


De  Meli  v.  De  Meli 

263,  272,  275,  287,  288,  290 

De  Mott  V.  Hageniian 211 

Denise  v.  Doiiise 362 

Dennerlein  v.  Dennerlein. .  78 

Denning-   v.    Corwin 44 

Denning  v.   Sehieffelin 535 

Denton  v.  Ontario  Co.  Nat. 

Bk 126,  154 

Depew  V.   Beakes 207 

Depew  Y.  Leal 226,  229 

Deposit  Natl.  Bk.  v.  Wick- 

liam oG6,  574 

De  Reguie  v.  Lewis 228 

De   Bnyter   v.    Trustees   of 

St.  Peter's  Cli 150 

Desbrongb  v.  Desbrough.  .  298 

Devaismes  v.  Devaismes. .  291 

Devenbacb  v.  Devenbacb.  .  257 

Dewey  v.   Finn 596 

Dewey  v.  Hoag 16 

Dewey  v.  Moyer 407 

Deyo    V.    Morss 370,  378 

De  Zeng  v.  Bailey 468 

Diamond      Mateb      Co.     v. 

Roeber 315 

Dickinson   v.   Dickinson...  263 

Dickinson  v.  Onderdonk.  . .  504 

Diefendorf  v.  Diefendorf .  .  176 

Diez.  Matter  of 386 

Dill  V.  Wisner 393 

Di  Lorenzo  v.  Di  Lorenzo.  . 

246.  255.  300,  308 

Disbrow  v.   Folger .^9 

Dlttmar  v.  Gould 409 

Dixon  V.  Dixon 37 

Dobbs    V.    Niebubr 136 

Dobie  V.  Armstrong 396 

Dodge  V.   Dodge 333 

Dodge  V.  Stevens 370 

Dodge   V.    Tbompson 378 

Doe  Y.  Doe 292 

Doe    V.    Roe 291 

Dolan    V.    Mayor,    etc.,    of 

N.  Y 492 

Dold  Y.  ILTggerty 152 

Dollard   y.   Taylor 585,  587 


PAGE. 

Donahue   y.   O'Conor 178 

Donald   v.    Elliott 190 

Donald  v.  Rockwell 226 

Donlon  v.   Kimball 387.  388 

Dorr  V.  Beck 431 

Dorsey  y.  Cummings .546 

Dorthy    y.    Servis 414 

Doubleday  v.  Newton 61 

Douglas  V.  Douglas 289 

Dows  Y.   Green 223 

Dows  V.  Rush 221 

Drake   y.    Drake 37 

Dresser  y.  Travis 05 

Dresser  v.  Van  Pelt... 5.38,  .539 

Dreyfus  v.  Scale 323 

Driggs  Y.  Williams .545 

Droege  v.  Baxter 602 

Drury  v.   Clark 129 

Dubois  Y.  Cassidy .591.  595 

Dmlley    v.     Congr.    of    St. 

Francis 167 

Duncan  v.  Dodd 75 

Dunham   v.   Dunham 399 

Dunham   v.    Minard 53 

Dunham  v.  Troy  L'nion  R. 

R.  Co 207 

Dunn'ng  v.  Ocean  Nat.  Bk.  151 

Durant   v.    Durant 267 

Dusenbury  v.  Dusenbury.  .  563 

Duvall    V.    Waters 187,  188 

Dwight    Y.    Enos 220.  221 

Dwyer  v.  Dwyer 108 

E. 

Estate  of.     See  name  of  party. 
Ex  parte.     See  name  of  party. 

Eadie    v.    Waldron 169.  170 

Eakin   v.   Knabe .50 

Easlbn    v.    Fickcrsgil].  .68,  138 
Easton    Natl.    Bk.    v.    Buf- 
falo Chem.  Wks 413 

E.      C.     Foundry     Co.      v. 

Hersee 213 

Eckenroth  v.  Egan 164 

Eddy  V.  Co-op.  Dress  Assn.  323 

Edgerton  v.  Ross 211 


XXIV 


TA15LE    OF   CASES. 


X'AGE. 

Edlunds.    Matter   of HSo 

EdiiU'Stiiii    V.   l.yde 

410,  418,  423 

Edmouston  v.  Mt'I.oud.423.  ri42 
Eels     V.     Am.     Teloph.     & 

Teleg:.  Co 4 

Egan   V.   Walsh 108 

Eicliman.    Matter   of 358 

Eighmie  v.   Strong 307 

Einstein  v.  Dunn 241 

Elevenili      Ward      Bk.      v. 

IleatluT ri45 

Eldred    v.     Kaiues 305,  306 

Ellensohn  v.   Keyes 401 

Ellerson  v.  Wostcotf 42 

Ellicott  V.  Mosier.102,  104,  107 

Ellsworth  V.  rutnam 197 

Ely  V.  Ehle 203 

Emei-y   v.   Emery 456 

Emigi'ant  Ind.  Sav.  Bk.  v. 

Goldman 128,  142 

Empire   State  Type  F.   Co. 

V.  Grant 218,  226 

Engle   V.    Bonneau 510 

Eq.  L.  Ins.  Co.  v.  Stevens.  .  125 
Erkenbi-ach  v.  Erkenbrach 

246.  278 
Ernst   v.    Rutliorford    &    B. 

S.  G.  Co 317 

Estate    of.     See    name    of 

party. 

Ethridge  v.  Orcutt 220 

Etz  V.  Daily 3 

Evans  v.  Evans 265 

Evarts   v.   Woods 85 

Ex    parte.      See    name    of 

party. 

Eysamen  v.  Eysamen 13 

F. 

Fairehild   v.   Dnrand 460 

Fanenll    Hall    Nat.    Bk.    v. 

Bussing 594,  596 

Faraoe  v.  Farace 265 

Farmers'    T.oan    &    Tr.    Co. 

v.  Banki-.s',  etc..  Co.  .99,  144 


PAGE. 

Faruham  v.  Campbell. 423,  574 

Farquaharson   v.   Kimball.  512 

I'^-roll  V.  Noel 144 

Faulkni'r  v.  Suydaiii 471 

Faure   v.    Winans 131 

Faville    v.    Iladcoek  .  .  .108,  1(» 

Feituer  v.  Ilocger 129 

Felt  v.  Dorr 529 

Felts   V.    Martin 148,  149 

Fenner  v.  Sanborn 596 

Fenton  v.  Flagg 511 

Ferguson  v.  Ferguson 272 

Ferguson  v.  Smith 129 

Ferlat  v.   Gojon 245,  254 

Fero  V.    Fero 255 

Ferris  v.   Strong 316 

FeiTy   V.    Sampson 78 

Meld  V.  Chapman 412 

Field  V.  Field 280 

Finch  V.  Simons 469 

Finck   V.    Mannering 547 

Fink   V.   Birg 370,  377 

Finn   v.    Sloiglit 107 

First    Nat.    Bk.    of    Canan- 

daigua  v.  Martin 

423,  572,  590,  594,  596 
First  Nat.   Bk.  of  Oswego 

V.  Dunn 231,  S40 

First  Nat.  Bk.  of  Plainfield 

V.  Harrison 140 

First  Nat.  Bk..  Matter  of.  . 

520,  572 

First  Nat.  Bk.  v.  Wilson..  528 

First  Nat.  Bk.  v.  Yates...  583 

Fisher  v.  Bennett 369 

Fisher  v.  Fisher 351 

Fisher    v.    Hersey.  .70.    77,  80 

Fisk  V.  Chif..  etc..  K.  R.  Co.  328 

Fisk  V.  Fisk 255 

Fiss  V.  Haag 575 

Fitchburgh     Nat.     Bk.     v. 

Bush  wick    Cheni.   Wks.  .  517 

Fitzgerald,  Matter  of 495 

Fitzgibbons  v.  Smith 567 

Fitzhngh  v.  Wiman 220 

Fitzpatrick  v.  Fitzpatrick. 

287  2S8 


TABLE   OF   CASES. 


XXV 


PAGE. 

Fitzpatrick  v.  Moses 601 

Flagg  V.  Swift 436i,  437 

Fleii^s  V.  Bueklej^ 148,  151 

Flemiiijr   v.    Burnbain 78 

Flynn  v.   Diefendorf 359 

Flynn  v.   Kennedy 84 

Florence  v.  Hopkins.  . .  .36,  37 

Fonda,  Matter  of 358 

Forbes  v.   Spaulding 545 

Forbes  v.  Waller 511 

Forbes  v.  Wlllard.499,  560,  568 

Ford  V.   Belmont 180,  181 

Ford   V.    Knapp 50,  90 

Ford  V.  Sampson 15 

Forman  v.  P^orman 253 

Forrest   v.    Forrest 279,  280 

Ft.  Stanwix  Bk.  v.  Leggett  418 

Foster   v.    Townshend .  .  .  305,  306 

Foster    v.    Wilkinson 560 

Foster  v.  Wood 462 

Fowler    v.     Bowery    Savs. 

Bk 212 

Fowler  v.  Fowler 

147,  273,  302.  303 

Fowler  v.  Hebbard 362 

Fox  V.   McGregor 157 

Fox   V.    Moyer 417 

Francisco  v.  Fitcli 362 

Frank  v.  Davis 145 

Franklin  v.  Van  Cott 151 

Franklin  v.  Haywai"d 126 

Frantz  v.  Ireland 24 

Frederick  v.  Decker 524 

Fredericks  v.  Niver 591 

Freeman  v.  Aliearn 110 

Freeman  v.  Barrowcliffe.  .  461 

Frelingliuysen  v.   Golden.  .  82 

Frost   V.    Craig 535,  546 

Frost'  V.  Mott 206 

P^nlton    V.    Fulton 103 

Fidton  v.  Whitney 72 

Furguson  v.  Tweedy 31 

G. 

Gagnon,    Matter    of 529 

Galinger  v.  Galinger 280 


PACK. 

Gall  V.  Gall 251 

Galster    v.    Syracuse    Sav.^ 

Bk '  604 

Galusha   v.    Galuslia 

275,  279,  280,  281 
Galwey    v.    U.     S.    Steam 

Sugar  R.  Co 329 

Gardner  v.  Smith 595 

Garfield  v.  Hatmaker 407 

Garrison  v.  Garrison 456 

Garver,    Matter    of 434 

Garvey  v.  Union  Tr.  Co.  .  35 
Gas   Light   Co.    of    Syr.   v. 

R.,  W.  &  O.  R.  R.  Co 3-4 

Gedney   v.   Prall 36 

Geery  v.  Geery...410,  412,  413 
Genesee  Co.  Bk.  v.  Bk.  of 

Batavia 416,  418 

Gere   v.   Clark 374 

Germ.    Am.    Bk.    of    Roch. 

V.  Dortliy 140 

Germ.  Savs.  Bk.  v.  Sharer.  152 

Germond  v.  Germond 301 

Gibney  v.  Reilly 585 

Gibbs,  Matter  of 147 

Gibson  v.   Gibson 273 

Gibson  v.  Haggerty 577 

Gibson   v.   Van  Derzee....  464 

Gilbert  v.  Finch 470 

Gilbert  v.   Frothingham .  . .  554 

Gilbert  v.  Gilbert 301 

Gillman  v.  111.  &  Miss.  Tel. 

Co 124 

Glacius  V.  Fogel 1.34 

Glacken  v.  Brown 16 

Glann  v.  Youuglove 220 

Glaser  v.  Glaser 272 

Glean  v.  Glean 255 

Gleason  v.  Gage 416 

Glenn  v.  Burrows 371 

Goddard  v.  Stiles 603 

Godding  V.  Porter 361 

Goebel  v.  Iffla 136 

Goldie  V.  Goldie 262,  274 

Goldstein  v.   Shapiro 240 

Gomprecht'  v.   Scott 

518,  574,  5S9 


XXVI 


TABLE   OF   CASES. 


PAGE. 

GooiIpU   v.  Harrington 7G 

Goojsell   V.   Goodsell 24it 

Goodwin  V.  Crooks 78 

Goodwin  v.  Situonson 135 

(ioodwin  V.  Wertheinier.  . .  209 

Gorden    v.    Gorden 103 

Ciordon  v.   Sterling 44 

Gorman  v.  Gorman 7S 

(Juuld  V.  Moore 521 

(iould  V.  Mortimer 70 

Gower  v.  Gower 265 

Graham  v.  Andrews 17 

Graham  v.  Lawyers'  Title 

Ins.  Co 595 

Graham  v.  Linden 119 

Graham   v.   Wells 231 

Grant  v.  Booth 237 

Grant  v.  Graham 156 

Graves  v.  Lake 559 

Gra:    V.  Gray 264 

Gray  v  Lleben 545 

Gray,  Matter  of 368 

Gray  v.  Schenck 418 

Graves   v.   Dudley 210 

Green  v.  Bullard 541,  555 

Green  v.  Griswold 42() 

Green    v.    Mai'tine 372,  378 

Green   v.    Mussey 143 

Greene's  Case 284 

Greene   v.    Greene 41,  299 

Greene  v.   Knox.  .447,  453,  480 

Greene    v.    Martine 372,  378 

Greenhall  v.   Unger 544 

Greenleaf    v.    Bklyn.,    etc., 

R.  R.  Co 30 

Gregg  V.  Gregg 293 

Griffin    v.    Dominguez .  .  .  498,  507 

Griffin  v.  Griffin 

245,   259,   275,   282,  298 
Griffin  v.  Long  Is.  R.  R.  Co. 

205,  217 

Griswold  V.  Manning 216 

Groh  v.-  Groh 284 

Groot  V.  Greeley 588 

Grube  v.  Grube 299,  300 

Guden,   Matter  of 480,  494 

Guilford   V.   Craudall 125 


PAOK. 

(Juilford  V.  Jacobie 128,  136 

<Jnilford  v.  Mills 217 

Gurnsey  v.   I'owers 18 

H. 

Ilaase,   Matter  of -494 

Haddock   v.   Haddock 300 

Hagan  v.  Sone 396,  399 

Hale  V.  Clausen 74 

Hale  V.  James 114 

Hall  V.  Dusenbnry 356 

Hall  V.  I>a  Franco  Fire  En- 
gine Co 6 

Hall  V.  Tuttle 211 

Hallenborg  v.  Greene 317 

Hallett  V.  Thompson 406 

Hallock  V.  Hallock 298 

llalpin     V.     Mut.     Brewing 

Co 318 

Halsey  v.   Reed 135 

Halsted    v.    Ilalsted 

53,  85,  300,  3<K> 
Ilammersley      v.      Hamm- 

mersley 84 

Ilaniilton  v.   Austin 187 

Hamilton   v.    Morange 580 

Hamilton  v.  Morris 52 

Hamilton  v.  Smith 380 

Hamilton  Nat.  Bk.  v.  Hal- 
sted    432 

Hamlin    v.    Smith 371 

Hammond  v.  Hudson  R.  L 

&  M.   Co 416,  418,  420 

Hammond  v.   Morgan 220 

Hancock  v.  Sears 

541,  543,  544,  549,  566 
ILankc    v.    Cigar    Makers' 

T^nion 438 

Hanse  v.  Cowing 196 

Hansee  v.  Mead 15 

ILanson   v.   Tripler 512 

Ilarbeck  v.  I'upin 460 

Harden   v.   Harden T.l2 

Harding  v.  Harding 274 

Harmony     Fire     Ins.     Co., 

Matter  of 335 


TAl'.LE    OF    CASES. 


XXVI 1 


PAGE. 

Harper  v.  Bangs 463 

Harrigan  v.  Golden 80 

Harris  v.   Harris 267,  390 

Harrison  v.  Peck 104 

Harrison   v.   Utiey 228 

Harrison  v.  Williin 238,  239 

Hart  V.  Jolinson 547 

Hart,  Matter  of 480 

Hart  V.   WautUe 76 

Hart'man  v.  Hartiuau 274 

Harvey  v.  Arnold 567 

Harvey  v.  McDonnell.  .405,  414 

Haskins  v.   Kelly 241 

Hastings  v.  Thurston 420 

Haswell   v.    Lincks 413,  422 

Hatch  V.  Weyburn 525,  537 

Haughian  v.  Conlon 399 

Hauselt  v.   Fine 380 

Hauselt  v.   Patterson.  .378,  381 

Hausheld  v.  Hausheld 281 

Havens  v.  Natl.  City  Bk.  .  509 

Hawes    v.    Barr.  .525,    547,  579 
Hawkins   v.   Mapes-Reeves 

Cons.    Co 167,  168 

Hawley  v.   Bennett 568 

Hawley   v.   Whalen 145 

Haxtun,  Matter  of 359 

Hayden  v.  Pierce 358 

Hays  V.  Midas 213 

Haywood  v.  Judson. . .  .57,  61 

Hazard  v.  Caswell 566 

Hazewell  v.  Coursen 211 

Hazelton  v.   Wakeman....  74 

Hegeraan   v.    Johnson 71 

Heller  v.  Cohen 68,  78 

Hellrelgel    v.    Manning....  78 
Hempstead,       Matter       of 

Town  of 582 

Hcnekon   v.    James 134 

Henderson  v.  Brooks 409 

Henderson  v.  Henderson.  . 

34,  41,  47 

Henderson  v.  Stone 540 

Hendrickson     v.     City     of 

NY 451 

Henuessy  v.  Poulsen 12 


PAGE. 

Ilenriques  v.  Yale  Univer- 
sity    400 

Henry  v.  Furbish 589 

Herkimer  v.  Rice 377 

Heroy  v.   Gibson 585,  587 

Herron  v.   Herron 250,  259 

Hewlett  V.  Davis 140 

Hewlett  V.  Wood 42 

Heyer  v.  Deaves 139 

Hibernia  Natl.   Bk.    v.   La- 
combo  313 

Higgins  V.  Sharp.  .249,  258,  259 
High  Rock  Knitting  Co.  v. 

Bronner 510 

Hiler  v.   Hetterick .  410 

Hill  V.  Draper 6 

Hills  V.  Peekskill  Sav.  Bk.  451 

Hilton  V.  Patterson.  . .  .544,  545 

Hitchcock  V.  Harrington..  107 
Hoagland,  etc.,  Co.,  Matter 

of 324 

Hobby  V.  Hobby 292.  295 

Hoffman  v.  Armstrong. ...  4 

Hoffman  v.  Burke 67,  71 

Hoft'man  v.  Dunlop 469 

Hoffman  v.  Markham 216 

Hoffman  v.  Wright 460 

Hofheimer  v.   Campbell...  231 
Hohenst'ein  v.  Westminster 

Candle  Co 228 

Holbrook  v.  N.  J.  Zinc  Co.  424 

Holbrook   V.   Orgler 521,  584 

Holder  v.   Holder 42 

Hollingshead  v.  Woodward  323 

Holmes  v.  O'Regan 567 

Holmes  v.  Steitz 559 

Holstein  v.  Rice 547 

Holton   V.    Robinson.  ..582,  604 

Home  Ins.  Co.  v.  Jones.  . . .  141 

Hone  V.  Fisher 154 

Iluud  V.  Haywood 469 

Hook  V.  Pratt 387 

Hopkins  V.   Cromwell 3.33 

Hopkins  V.   Lott 369 

Hopper    V.    Hopper 259,  292 

Hoppough  V.   Struble 16 


X  X  \"  1 1 1 


■I'Ain.i:    (F    CASKS. 


I'ACK. 

Iloriraii  v.  McKm/.U' KIN 

Horn  V.  Town  of  New  Lots  14(1 

Home  V.  City  of  Buffalo.  .  11>7 

Horselield    v.    Black ;5:j 

Ilortou  V.   Brownsey 19(i 

Hortou   V.   Buskirk 5o 

TTortuii   V.   Cantwell 

35)2.  393.  :VJ4 

Ilosford  V.  Ballard 25 

House   V.    Lockwood 1.54 

Hovey  v.  Elliott 307 

Hovey  v.  Hovey 3(i4 

Howard  v.  Howard IT 

Howe  V.  Bell 3 

Howe   V.    Deuel 328 

Howe  V.   Oyer 2^31 

Howell  V.  Leavitt 15.  123 

Howell   V.   Mills 33.  75 

Howell   V.   Wallace 375.  381 

Howlaud  V.  Howland 207 

Hoyt  V.  Bonnett 358 

Hoyt  V.  Mann 585 

Hubbell  V.  Merchants'  Nat. 

Bk 41fi 

Hubbell  V.  Moulsou 123 

Hubboll     V.      Syracuse     T. 

Wks 3:!3 

Hudson  V.   Plets 406 

Hudson  V.   Spauldin.c 4.37 

Hudson  V.  Swan 2<)S 

Hudson  River.  W.  S.  R.  R. 

Co.  V.   Kay 477 

Hughes  V.  Hughes 39 

Hull  V.  P]ly 44S 

Hidsaver   v.    Wiles 

536,  538,  .540.  5S2 

Hulse    V.    Ilulse .37.  45 

Hultslander  v.  Thompson .  .  .362 

Humbert    v.   Abecl 437 

Humes  v.  Proctor 200 

Hunter  v.  Hunter 469,  587 

Hunter  v.  Starin 6 

Hunter      v.      Trustees      of 

Sandy   Hill    6,  lo-lG 

Huntington  v.  Huntington.  90 

Hurlburt  v.  Banks 454 

Hurlbut    V.    Durant 351 


I'.XfiK. 

II use  V.  (luyol 577 

Ilusiis  V.    .Mdridge 

.362.  ;!(;5,  3<;7,  ;;tw 

Hutchinson  v.  Smith 196 

Hutsoii    V.    Weld 583 

liyatl    V.    DusenlMiry.  ..584.  093 

Hyatt   V.    Ptigsley IT 

Hyde  V.   Hyde 115 

Hyde  v.  Patterson 229 

Hydew  v.   Tanner 3X4 

I. 

Illon  Bank  v.  Carver 321 

Importers'  &-  Traders'  Nat. 
Bk.   v.   Quackenbush.  . . . 

499.  501,  513 

Ingersoll  v.   Bostwick 221 

Inglehai-t,  Matter  of 598 

Ingraham,  Matter  of 359 

Ireland   v.   Nichols 18 

Ireland  v.  Smith 426 

Irvine  v.  Milbank 470 

Irvine  v.  Wood 196 

Irwin   V.   Chambers 580 

Isaacs   V.   Isaacs 3,07 

Israel  v.  Israel 275.  291.  299 

J. 

.Tackson   v.   Buel 5 

Jackson   v.   Edwards 90 

.Jackson    v.    Herder 15,  31 

.Tackson  v.  Loomis 50 

Jackson    v.    May 5 

Jackson   v.    Min-ray 567 

.Tackson  v.  Schauber 15 

.Tackson   v.    Winne 254 

Jackson  Co.  v.  Haven 169 

.Tacobie  v.  Mickle.128,  136.  142 

.Tacobsca  v.  Jacobson.  .297.  'M)2 
James    Goold    Co.    v.    Me- 

heady 407 

Jeffres  v.   Cochran 424 

Jenkins  v.  Fahey ::0,  39.  96 

Jenkinson  v.  Harris. .  .367,  369 

Jess  lip   v.    TIulso 420 


TABLE   OF   CASES. 


XXIX 


PAGE. 

Jewitt  V.  Jewitt 269 

John  Church  Co.  v.  Dovsey 

229,  237 

Johns   V.  Johns 280 

Johnson  v.   Cochrane.  .398,  399 

Johnson    v.    Elwood. .  .206,  211 

Johnson  v.  Frew 213 

Johnson  v.   Johnson. .  .266,  267 

Johnson  v.   Martin 598 

Johnson  v.  Smith 462 

Johnson   v.    Underhill 338 

Jones  V.  Carroll 96 

Jones  V.  Conde 124 

Jones  V.  Jones 

30,  295,  297,  298 

Jones,    Matter    of 436 

Jones   V.    Richards 394 

Jooss  V.  Fey 45 

Jordan  v.  Poillon. .  .31,  43,  78 

Jordan  v.  Van  Epps.79,  90,  95 

Joslyn  V.  Joslyn 198 

Joyce  V.  Holbrook 568 

Joyce  V.  Spafard 499,  551 

Judge  V.  N.  y.  C.  &  H.  R. 

R.  R.  Co ." 16 

Judson    y.    Rossie    Galena 

Co 329 

Jurgenson  v.  Hamilton.  . .  .  ,580 

K. 

Kahn  v.   Hoes 390 

Kain   v.   Fisher 119 

Kalish  V.  Kalish 393,  394 

Kamp  V.   Kamp.  .280,   281,  294 

Kane  V.  Hutkoff 167 

Kapp  V.  Kapp 81 

Kat'z  V.   Schnaier 397 

Kaufman   v.   Thrasher.... 

557,  558,  581 

Kearney's  Case 582 

Keeler  v.  Bklyn.  El.  R,  R. 

Co 320 

Keeney  v.  Morse 409 

Keihen   v.    Shipherd. .  .553,  580 

Keller  v.  Payne 425 

Kelly  V.  Israel 69,  138 


PAGE. 

Kelly  V.   Kelly 270,  288 

Kelsej'     V.     Pfaudler    Pro- 
cess Co 3.39.  343 

Kelty  V.  Yerby 539 

Kendall   v.   Treadwell 

1.54,  1.55,  156 

Kennagh  v.  McGolgan....  352 

Kennedy  v.  Carrick 577 

Kennedy  v.  Kennedy.  .287,  288 

Kennedy  v.  McKone 165 

Kennedy,   Matter  of ..  .389,  390 

Kennedy  v.   Norcott.  .  .569.  580 

Kennedy  v.  Thorp 597 

Kennedy   v.    Weed 525,  568 

Kenney   v.   Apgar 163 

Kenshaw  v.  Thomp'Son ....  153 

Kerr  v.  Kerr 278 

Kerrison  v.  Kerrison.  .251,  283 

Keyes  v.  Keyes 2.55 

Kidd  V.  Dennison 187 

Kimball  v.  Hewitt 448 

Kimball   v.    Mapes 34 

Kincaid  v.  Scott 191 

King   V.    Brewer 255 

King  V.    Orser 241 

King  V.  Piatt 69,  138,  140 

King  V.  Ross 182 

King   V.    Tuska 5.52 

King  V.  Townshend 176,  179 

King  V.  West 150 

Kingman  v.  Frank 406 

Kingsland  v.  Chetwood .... 

149,  150,  151 

Kingsland  v.  Fuller 79 

Kingsland  v.  Murray .380 

Kingsley   v.   Bowman 449 

Kingsley  v.  First  Nat'.  Bk. 

of  Bath 329 

Kirby  v.  Kirby 270 

Kirby,  Matter  of 359 

Kirchener    v.    New    Home 

Sewing  Mach.  Co 201 

Kirk  V.  Kirk 79,  81,  96 

Kirkwood  v.   Smith 467 

Kissam  v.  Kissam 288 

Kittingcr  v.    Buffalo  Trac- 
tion Co 448 


XXX 


TABLE    OF   CASES, 


PAGE. 

Kleiu  V.   WoUsoliu 254 

Knapp  V.   Smith 209 

Knights  of  Pythias  v.  Man- 
hattan Savs.  lust 

572,  575,  570,  577 
Knowies  v.  City  of  N.  Y.. . 

450,  452 

Knowles  v.  De  Lazare. . . .  559 

Knox  y.  McDonald 18 

Koch  V.  Puicell 73 

Kock  V.  Kock 298 

Koepke  v.  Bradley 79 

Kohlci-  V.   Kohler 40 

Kortright   v.   Cady 137 

Kotzen  v.  Nathanson.  .109,  170 

Kramei-    v.    Schatzkin i  464 

Kress  v.  Morehead.  . .  .525,  539 

Krone  v.   Klotz 574 

Kroner  v.  Reilly 503 

Kurtz  v.   Clausen 450 

Kuster  v.  Kuster 287 

Kyle  V.   Kyle 105 

L. 

Labro  v.  Campbell 201 

Lahey  v.  Kingon 457 

L.    S.    &    M.    R.    R.    Co.    V. 

Roach 207 

Lambert  v.   Converse 450 

Lamphere  v.  Lamphere...  309 

Lanahan  v.  CafTrey 414 

Lane  v.  Salter 400 

Lang  Y.  Ropke 22.  23 

Lang  V.  Wilbraham 20 

Langendyck  v.  Burhaus...  24 

Lanning  v.  Carpenter 189 

Lansing  v.  East'on 

422.  425.  500.  507 

Lansing  v.  Goelet 153.  154 

Lansing,   Matter   of 599 

Lansing  v.   Smith 195 

Larkin  v.  Mann 52,  01 

Lamed  v.  Hudson 8 

Lathrop  V.  Clapp.  .500,  561,  564 

J  jaw,  Matter  of 386 

Lawrence  v.  Brown 119 

Lawrence  v.  Townsend...  353 


PAGE. 

L4>acli  V.   Williams 221 

Leavy  v.  Beacham 529 

Lederer   v.    Ehrenfeld 507 

Lee  V.   Dek'hanty 577 

Lee   V.   Heirbeiger 531,  533 

Lee  V.  Lee 366 

Lee  V.   Supervs.   of  Jeffer- 
son    450 

Lees  V.  Haj'den 430 

Lefevre  v.  Laraway.  . .  .72,  75 

Lefevre  v.  Phillips 400 

Leggatt   V.    Waller 595 

Leggett  V.   Boyd 457 

Leggett  v.  Sloan 589 

Lehigh  Coal  Co.  v.  Cen.  R. 

R.  Co.  of  N.  J 332 

Leut  V.  McQueen 420 

Leonard  v.  Buttling.  .  .241,  242 

Leonard    v.    Clinton 414 

LeproU  y.  Kleiuschmidt    4,  11 

Le  Roy  y.  Halsey 559,  564 

Lertora  y.  Reimann 507 

Lescuor  v.  Leseuer 268 

Leslie,   Matter   of 530 

Leslie  v.  Leslie.  .  .298,  301,  302 

Levey   v.    Bull 598 

Levy  V.  Kirby 513 

Levy  V.  Levy 298 

Lowellyn   v.    Lewellyn ....  293 

Lewis  V.  Cook 390,  397 

Lewis  V.  Howe 173,  176 

Lewis   v.   Lewis.  ..... .298,  303 

Lewis   v.   Maloney 352 

Lewis  v.  Oliver 478 

Lewis  V.  Ponfield 555 

Lewis  v.  Thompson 200 

Lewisohn  v.  Apple 219 

Lewisohn  v.  Drew 410 

Libby  v.  Libby 218 

Lichtenberg  v.  Herdtf elder  410 

Lilliandahl  v.   Fellerman.  .  512 

Lindsay  v.  Sherman 523 

Lippincott  v.  Westray 548 

Lisncr  v.  Toplitz,  Matter  of 

403,   510,  537 

Littell  v.  Say  re 378 

Livingston  v.  Clarkson .... 

57,  03,  100 


TABLE    OF   CASES. 


XXXI 


PAGE. 

Liviugston  v.  Haywood...  190 
Liviug'ston  v.  Livingston.. 

33,    G5,   24G,  281 

Livingston  v.  Mildrum.  . .  .  136 

Livingston  v.   Moore 178 

Livingston  v.  Peru  Iron  Co.  417 

Livingston  v.  Swift 551 

Livingston  v.  Tanner 198 

Loauers'  Bli.  v.  Jacobj'.  . .  .  239 

Lobdell  V.   Sfowell 208 

Locke   V.    Covert 333 

Lockwood  V.  Fawcett 378 

Lockwood   V.    Worstoll....  559 

Loeb  V.  Willis 145 

Londriggan  v.   N.  Y.  &  N. 

H.  R.  R.  Co 314 

Long  V.   Rogers 396,  397 

Long  V.  Stafford 458,  4&4 

Longbotliam,   Matter  of. . .  352 

Lonsdale  v.   Lonsdale 302 

Loomis  v.  People 563 

Loomis  V.  Semper 178 

Loos  V.  Wilkinson. 407,  415,  432 
Lounsbnry    v.    Sherwood .  . 

365,  366,  367,  368 

Lovett  T.  German  Ref.  Cb.  130 

Lowenthal  v.  Lowenthal .  .  275 

Lowrey  v.  Mansfield 243 

Luckey  v.  Gannon 210 

Lupton    V.    Lup ton 370 

Lusk  V.  Lusk 300 

Lutes  V.  Briggs 450 

Lydecker  v.  Smith 508 

Lyle  V.   Smith 40 

Lynch  v.  Johnson 499 

Lynch  v.  Rome  Gas  L.  Co.  97 

Lynch  v.   St.  John 211 

Lynde  v.  Lynde.  .281,  301,  308 

M. 

Matter   of.      See   name    of 
party. 

McAdam  v.  Walbrau 226 

McAlear  v.   Delaney 53 

MeArthur  v.  Hoysradt. . .  . 

406,   432,  574 

MeArthur  v.  Lausburgh. . .  526 


PAGE. 

McBride  v.  Farmers'  Bk..  312 

McBride  v.   McBride 3O0 

McCabe  v.  Goodfellow. . . . 

437,   439,  440 

McCabe  v.  McCabe 50 

McCann  v.  Gerding 162 

McCartan  v.  Van  Syckel .  .  565 

ilcCarthy  v.  McCarthy 

265,  272,  281,  282 
McCarthy  v.  Ockermann.  . 

225,  231,  240 

McCleai'y  v.  MeCleary. . .  .  271 

MeCobb  v.  Christiansen...  220 
McGonologue  v.   Larkins. . 

163,  169 

McCorkle  v.   Herrmau.542,  601 

McCormack  v.  Kehoe 573 

McCotter  v.  Jay 76 

McCreedie  v.  Senior 566 

McCreery  v.  Gordon 418 

McCruden  v.  Roch.  Ry.  Co.  200 

McCulloch  V.  Norwood 339 

McDermott  v.  Hennesy.  . .  .  152 

McDonald   v.    O'Hara 35 

McDonough  v.  McDonough  299 

McElwain  v.  Willis 419 

McEwan  v.   Burgess 538 

McGlynn  v.  McGlynn . .  280,  306 

McGlynn  v.  Post 439 

McGowan   v.   Morrow 84 

McGowan  v.  Tifft 35 

McGregor  v.  Brown 188 

McGuire  v.  Schroeder 581 

Mclntyre  v.   Clark 117 

Mack  V.  Am.  Exp.   Co 438 

McKechnie  v.   Sterling....  80 

McKee  v.  Judd 574 

McKeen   v.   Fisher 103 

McKeon  v.   Kearney 41 

McKim  V.   McKim 278 

McKinstry  v.  Emerson....  155 

McLaughlin  v.  Bieber 459 

McLaughlin   v.    Teasdale.  .  70 

McMahon  v.  Rauhr 439 

McMillan  v.  Vanderlip.  . .  .  573 
MacNabb     v.     Porter    Air- 
Lighter  Co 332 

McNeil  v.  McNeil 263 


XXX 11 


TAl'.LE    OF    CASES. 


PAGE. 

McQueen  v.  McQueen 800 

McRoberts  v.   Pooley.  .146.  151 
McYeany  v.  Mayor,  etc..  of 

N.  Y 47G.  402 

Madge  v.  Madge 273 

Magee  v.  Geneseo  Academy 

343.  34'. 

Magoun  V.  Magoun o4i) 

Mahler  v.  Schmidt 418 

Mahoney  v.  Allen 82 

Maloney  v.  Cronin 42 

:Mallory  v.  Gulick 548 

Mallory   v.   Norton 597 

Mander  v.  rx)w 356 

Mandeville  v.  Avery 597 

Mandeville    v.    Campbell. . 

409,  4^4 

Mann  v.  Currie 338 

Mann  v.  Pentz 323.  339 

Manning  v.    Evans.... 503  590 

Manning  v.  Keenan 

204,   227.    241.  242 

Mapler  v.   Mackey 464 

Marble  v.  Lewis 110 

Marsac.   Ke 40 

Marshall  v.  Davies 145 

Marsliall  v.  Friend 225 

Marshall    v.   Marshall 283 

Marshall,  Matter  of 125 

Marstall  v.   Mills 339 

Martin  v.  Gilbert 236 

Martin  v.  Rector 26 

Martin  v.  Sheridan 503 

Marx  V.   Spaiilding.  . .  .545.  562 

Masey  v.  Masey 299 

Mason  v.  Denison 457 

Mason  v.  Hackett 501,  527 

Mason  v.  Holmes 438 

Mason  v.  Mason 39.  288 

Mason      Supplies     Co.      v. 

Jones 167 

Masten   v.   Amerman.  .595.  599 

Masten  v.   Budlington 368 

Mathez  v.   Neidig 326 

Matthews  v.  Duryee 151 

Matthews  v.   Nielsen 423 

Maxwell  V.  INIaxwell 299 


PAGE. 

May  V.  May 74 

Mayor,  etc.,  v.  Campbell..  25 

Mayor  v.  Coffin 49 

Mayor,  etc.,  v.  North  Shore 

S.  I.  Ferry  Co 5 

Mayor,  etc.,  v.  Smith 14 

Mayor  of  N.  Y.  v.  Law...  4 

Mead  V.  Jenkins 95 

Mead  v.  Langford 127 

Mead  v.  Mitchell 31.  96 

Mead  v.  Spink 145 

M.  &  T.  Bk.  V.  Dakin 404 

Mech.    &    Traders'    Bk.    v. 

Ilealey 562 

Megarge  v.  Megarge 284 

Meiggs  V.  Willis 99 

Mellen  v.  Mellen 

251.  258,  398,  394,  395 

Mendel  v.  Mendel 307 

Meo  V.  Meo 259 

Merchants'  Exch.  Nat.  Bk. 

V.    AVaitzfelder 462 

Merchants'  Ins.  Co.  v.  Hin- 

man 373-374 

Merriam  v.  Hill 573,  574 

Merrill  v.  Allen 516 

Merrill  v.  Merrill 266,  275 

Merritt  v.  Merritt 299 

:Merritt   v.    Slocuni 585 

Merritt  v.  Smith.  .180,  182,  184 

Mersereau  v.  Ryerss 382 

Mertens  v.  Roche 370 

Mertz  V.  Fenouillet 440 

Messier  v.    Schwarzkopf....  438 

Metcalf  V.   Moses 430 

Methodist'     Book     Con.     v. 

Hudson 581 

Metropolitan  Tr.  Co.  v.  Mc- 
Donald    350 

Metzger  v.  A.  &  A.  R.   R. 

Co 449 

Meyer  v.  Mohr 413 

Meyers  v.  Herbert. 552.  553.  567 

Mickles  v.  Townsend 122 

Miles  V.   Miles 298 

Miller  v.  Adams 

520,  525,  530,  571 


TABLE    OF   CASES. 


XXXlll 


PAGE. 

Miller  v.   Barlow .310.  317 

MiUer  v.  Collyor 140 

Miller  v.  Hall 416 

Miller  y.  Hooper m?i 

Miller,  Matter  of 352 

Miller  v.  Maujer 397 

Miller  v.  Miller 288 

Miller  v.  Morton 371 

Miller  v.  Naumann 34 

Miller  v.  AVright 41 

Milliken   v.   Thomson.  .498,  536 

Mills  V.  Dennis 156 

Mills  V.   Martin 207 

Mingay  v.   Lackey 59 

Mission  of  Immaculate  Vir- 
gin V.  Cronin 6 

Mitchell  V.  Allen 470 

Mitchell  V.  Barnes 18 

Mitchell's    Case 568 

Mitchell   V.    Mitchell. .  .269,  276 
Model  Bldg.  &  L.  Assn.  v. 

Patterson 482 

Moller  V.   Moller 272 

Molsou's  Bk.  v.  Boardman.  329 

M'Onarque  v.  Monar«iue.96,  395 

Monk   V.    Monk 208 

Montgomery  v.  Boyd 411 

Montgomery  v.  Burgess . . . 

363.  364 

Moore    v.    Appleby 41 

Moore   v.    Brink 436.  441 

Moore  v.  Empie 587 

Moore  v.  Shaw 134,  144 

Moore  v.   Taylor 555 

Moore  v.  Westervelt 231 

Moot  V.  Moot 254 

Morey  v.   Tracey 461.  465 

Morgan  v.  N.  Y.  &  Alb.  R. 

R.   Co 3.38 

Morgan  v.  Plumb 156 

Morgan  v.  Potter 593 

Morgan     v.      Von     Kohn- 

stamm 584 

Morrell    v.    Morrell 261.  269 

Morris  v.  Morange 133 

Morris  v.  Mowatt 383 

Morris  v.  Whelan 474,  478 


PAGE. 

Morse  y.  Morse 35 

Mortimer  y.  Chambers.  . .  .  .381 

Morton  y.  Weil 418 

Mosehell  y.  Boor ."87 

Moser   v.    Polhamus 553 

Mott  V.  Mott 79 

Moulton  V.  Cornish.  ..  .126.  1.54 

Moultrie  v.   Hunt 387 

Mowbray  v.  Levy 167 

Mowi-y  V.  Peet...364,  365,  366 

Moyer    y.    Moyer 382,  490 

Muldowney  y.  Morris  &  Es- 
sex R.  R.  Co 199 

Mulford  V.  Gibbs .567 

Muller  y.  MuUer 254 

Muller  V.   Naumann.  ..  .65,  100 

Muller  y.  Struppman 65 

Munsell  y.  Flood 221 

Munzinger    v.    The     Courier 

Co 438 

Murphy  y.  Loomis 6 

Murray  y.  Harway 78 

Murray  Hill  Bk.,  Matter  of  324 

Murry  v.  Hay 196 

Murt'ha  v.  Curley 419 

Mutual  L.  I.  Co.  V.  Anthony 

147,   149.   151,  152 

Mutual  L.  I.  Co.  V.  Balch.  .  80 

Mutual  L.  I.  Co.  y.  Bowen.  148 

Mutual  L.  Ins.  Co.  v.  Hoyt  134 

Mutual  L.  Ins.  Co.  y.  Salem  152 

Myer  y.  Thomson 406 

M.yer's   Case 585 

Myers   y.   Cronk 361,  362 

Myers  y.   Myers 264,  265 

Myers  y.  Trimble 565 


N. 


Natl.  Bk.  y.  Vanderwerker  441 
Natioual  Bk.  of  Fishkill  y. 

Speight 358 

National    Bk.    of    Republic 

y.  Thurber 405 

Natioual  Cash  Reg.  Co.  y. 

Ague 218 


XXXIV 


TAI'.Ll';    OF    CASKS. 


PAGK. 

Natl.      Knaiiu'ling     Cd.      v. 

Kaplan 2Ur..  2*J7 

Natioual    Fire    Ins.    Co.    v. 

Loomis 71 

Natl.     GraniaplKmo     Coi-p.. 

Matter  of 528 

Natl.  Print  Co.  v.  I'attorson  r>27 

Natl.  S.  S.  Co.  V.  Shoohan.  2(30 
Natl.    Tradesmen's    Bk.    v. 

Wetmoi-e 409 

Natl.  Union  Bk.  v.  Riger.  . 

42:?,  427 

Neale  v.  Osborne 569 

Nelson  v.  Bostwick 457 

Nelson  v.  Brown 128,  142 

Nestor  v.  Bisc-hoff 231 

Netzel  V.  Mulford 532 

New  V.  Bamo 426 

Newell  V.  Cutler 

541,  542,  544,  549 

Newell  V.  Wighara 27 

New     Hope,     etc.,     Co.     v. 

Poughkeepsie  Silk  Co...  312 

Newman  v.  Cordell 419,  421 

N.    Y.   Bd.   of   Fire   Under- 
writers V.  Whipple  <fc  Co.  437 
N.   Y.  &   L.  I.  Bridge  Co., 

Matter  of 345 

N.  Y.  L.  Ins.  Co.  V.  Aitkin..  124 

N.  Y.  L.  Ins.  Co.  v.  Mayer.  147 
N.  Y.  Loan  &  Imp.  Co.  v. 

De  Navarro 603 

N.    Y.    Sec.    &    Tr.    Co.    v. 

Schoenberg 128 

Nichols  V.  McLean 493 

Nichols   V.   Michael 20.5.  207 

Nichols   V.  Nichols 302 

Nichols  V.  Potts 220 

Niver  v.  Crane 407 

Noble  V.  Cromwell.  .47,  54,  78 

Nolan  V.   Command 44 

Norris  v.  Jones 226 

North  V.  North 259 

Northern    Turnpike    Co.    v. 

Smith 5 

Northrop  v.  Anderson 57 


PACE. 

Xosscr   V.   Corwiii 2"28 

No  well  V.  (Jilbcrt 236 

Nussborger  v.  Wasserman.  167 

Xutt  V.   Cummiug 133,  151 


o. 


Oakley  v.  Aspiinvall.  .  .463,  465 

O'Brien  v.  Jackson 349 

Ochs  V.  Pohly 604 

Ocobock  V.   Eeles 397 

O'Connell  v.  Kelly 239 

O'Connor  v.  Docen 411 

O'Connor  v.  Felix 78 

O'Connor  v.  Mech.  Bk 595 

O'Connor  v.  Walsh.  ..  .453,  456 

O'Dea   V.    O'Dea 259 

O'Donoghue    v.   Boies 

33,  34,  72 

O'Donoghue  v.   Smith 33 

O'Dougherty  v.  Remington 

Paper  Co 110,  111 

Ogden      Lumber      Co.      v. 

Busse 191,  192 

Ogdensburgh     Bk.     v.     A'aii 

Rensselaer 440 

O'Grady  V.  O'Grady 54 

Ogsbury  v.  Ogsbury 349 

Oleudorf  v.   Cook 20 

Olmsted  v.   Harvey 7 

Olmsted  v.  R.  &  P.  R.  R. 

Co 336 

Oppeuheim  v.  Lewis 221 

O'Reilly  v.   Good 227.  229 

O'Reilly  Co.  v.  Greene 313 

Orleans    Co.    Natl.    Bk.    v. 

Spencer 457 

Ormes  v.  Baker 585,  586 

Orr  V.  Gilmore 429 

Orr  V.  McEwen 457 

Osborne   v.    Parker 366,  368 

Osterhoudt  v.  Rigney..448,  449 
O.sterlioudt     v.      Supervisors 

of  Ulster 453 

Ostrom  V.  Greene 439 

Ostrom  V.  Osti-om 515 


TABLE    OF    CASES. 


XXXV 


PAGE. 

Otis   V.   Williams 227,  230 

Otto  V.  Otto 263 

Oweu  V.  Dupignac 511,  512 

P. 

Packard  v.  Packard 293 

Paddock  v.  Guyder 229 

Paine  v.  Upton 79 

Paisley  v.   Paisley 288 

Palen  v.  Bushnell 54G,  598 

Palmer  v.  Foley 475 

Palmer  v.  Palmer 286,  294 

Pardee  v.   Tilton 508,  555 

Parisli  V.  Parish 33,  81 

Park  V.  Park 259 

Parker  v.  Day 348 

Parker  V.  Hunt 5&8 

Parrish,   Matter   of 530,  543 

Parry  v.  Am.  Opera  Co...  332 

Parsons  v.  Bowne 381 

Patcben  v.  Rofkar 409 

Patterson   v.    Brown 

422,  423,  424 

Patterson  v.  Buchanan.  ..  .  349 

Patterson,  Matter  of 547 

Patterson  v.  Patterson ....  302 
Patterson  Brots.  v.  Goorley. 

582,  587 

Pattison  v.  Powers 130 

Patton  V.  Patton 299 

Paul  V.  Paul 275 

Payne  v.  Becker 102 

Payne  v.  Smith 134 

Pearce  v.  Ferris 12 

Pearce  v.  Moore 178,  179 

Pearl  St.,  Matter  of a3,  100 

Pearsall  v.  Rosebrook 40 

Peck  V.   Belknap 447,  480 

Peck  V.  Disken 517 

Peck  V.    Newton G 

Peck  V.  Peck 266,  268,  284 

Peckner   v.    Webb 437,  442 

Pell  V.  Pell 78 

Pelletreau  v.  Rathbone 350 

Pennsylvania     Glass     Co., 

Matter  of 542 


PAGE. 

People  V.  Alb.  &  Susq.   R. 

R.  Co.  .  328,  478,  481,  483,     490 
People  V.  Am.  Loan  &  Tr. 

Co 338 

People  V.   Atl.   Ave.   R.   R. 

Co 342 

People  ex  rel.  Atty.  Genl. 

V.   Utlca   Ins.   Co 487,     490 

People  ex  rel.   Babcock  v. 

Murray 487 

People  V.   Ball 558 

People   V.   Ballard 318,     320 

People  V.  Bergen 68,     138 

People    V.    Buffalo    Stone. 

etc.,  Co 342,     343 

People     ex     rel.     Busli     v. 

Thornton 479 

People   V.    Carpenter 479 

People  V.  Clarke 496 

People  V.  Commercial  Bk.  . 

326,     338 

People  V.  Conover 492,     496 

People  V.   Cook 474 

People    ex    rel.    Cornell    v. 

Knox 486 

People  ex   rel.    Corscadden 

v.  Howe 474 

People    ex    rel.    Corwin    v. 

W^alter 480 

People  V.   Cowan 501,     504 

People    ex    rel.     Crane    v. 

Ryder 485,  486,     487 

People    ex    rel.    Dailey    v. 

Livingston 495 

People  ex  rel.  Day  v.  Ber- 
gen   566,     569 

People  ex  rel.  Demarest  v. 

Fairchild 484,     485 

People  V.  Dooley 485 

People  V.  Equity  Gas  Light 

Co 482 

People  V.  Fields 444 

People     ex     rel.     Fitcli     v. 

Mead 584 

People  V.  Flanagan 482 

People  ex   rel.    Furman  v. 

Clute 495 


XXXVl 


TABLE   OF   CASES. 


PAGE. 

People    ox    rol.     Orant    v. 

Warnof 547,     558 

People    ox    rol.    Griffin    v. 

Ryder 88 

People    ex    rel.    Ilatzel    v. 

Hall 478.     47G 

People    ex    rel.    Ilawes    v. 

Walker 485 

People    ex    rel.    Hearst    v. 

RamaiK)  Water  Co.  .325,     343 
People  ex  rel.  Hir.scli  v.  Mc- 

Causland 490 

People  V.   Hulburt 526 

People  V.  Injrersoll 444 

People  ex  rel.  Israel  v.  Tib- 
bits  478 

People  V.   Jones 516,     530 

People    ex    rel.    Judson    v. 

Thaclier 473,  487,     490 

People  ex   rel.   Kearney  v. 

Kelly 564 

People    ex    rel.     Kelly     v. 

Com.   Council   of  Blclyn.     477 
People  ex  rel.   Kilbourn  v. 

Allen 480 

People  ex  rel.  KInjjsland  v. 

Clark 481 

People  V.  Leipzig 558 

People  V.  Loew 482 

People  ex  rel.  Mace  v.  Oli- 
ver   536,  537,     545 

People    ex    rel.     Little    v. 

Sampson 479 

People  V.  Levy 520 

People    ex    rel.    Lewis     v. 

Brush 480 

People    ex    rel.    McConville 

V.  H'lls 478 

People  V.    Marston.  . .  .559,     568 
People  ex  rel.  Martin  v.  Me- 

Cullough 477 

People  V.  Mauran 3 

People  V.  Maj'or,  etc 18 

People  ex  rel.  Mayor,  etc., 

of  N.  Y.  V.  Pendleton ...     560 
People  V.  Metro.  Tel.  Co. . 

194.     196 


PAGE. 

People    ex     n-l.     Miller    v. 

Ryder 88 

People    V.   Miner 480 

l*eople»ex    rel.     Morrij    v. 

Randall 552 

People  V.  O'Brien .•'.42 

People  V.  Oliver 525 

People  V.  I'aulding 296 

People  ex  rel.   Peabody  v. 

Atty.  Genl 484 

People   ex  rel.   Petry   v.    De 

Bevoise 485 

People  V.  Piatt 474,  486,     488 

People  V.  Police  Comrs...  480 
People    V.     Pres.,     etc.,    of 

Hillsdale      &      Chatham 

Turnpike 487 

People  V.   Purdj- 479 

People     V.     Remington     & 

Sons 334.     335 

People  V.   Rensselaer,  etc., 

R.  R.  Co 481 

People    ex     rel.     Sears     v. 

Tobey 491 

People  V.   Seneca  Lake  G. 

&  W.  Co 324 

People    ex    rel.     Smith    v. 

Pease 490 

People  ex  rel.  Stenimler  v. 

McGuiro 490 

People  ex  rel.  Swinburne  v. 

Nolan 486,     487 

People    ex    rel.    Taylor    v. 

Thompson 481 

Poople     ex     rel.     Tuell     v. 

Paine 565 

People  V.  IT.  &  D.  R.  R.  Co.  342 
People  V.  Van  Rensselaer. .  6 
People  ex  rel.  Van  Valken- 

l)urg  V.  Recorder  of  Al- 
bany       532 

People  ex  rel.  Van  Voost  v. 

Van  Slyck 479 

People   ex    i-el.   Watkins   v. 

Perley 400 

People  ex   rel.   Williams  v. 

Hulburt 557 


TABLE    OF   CASES. 


XXXVll 


People    ex     rcl.     Winans    v. 

Adams 490 

People   ex  rel.   Winchester 

V.  Coleman t  .  436 

People    ex    rel.    Wright    v. 

Willard 493 

Percival  v.  Percival 30.") 

Perkins  y.  Kendall ....  514,  572 

Perrino  v.  Dunn 1.56 

Perry  v.  Perry 286,  290 

Peterson  v.   De  Baun 14 

Pettee  v.  Pettee 266 

Pettibone  v.  Drakeford 209 

Pettit  V.  Allen 2.39 

Pfohl  v.   Simpson 327 

Pharis  v.  Gere 201 

Philipp  V.  Von  Raven 467 

Phillips  V.  Gorham 7 

Phillips  V.  Melville 219.  220 

Phillips  V.  R.  W.  &  O.  R.  R. 

Co 179 

Pierce  v.  Dart. 196 

Pierce  v.    Tuttle 6 

Pierce  v.  Van  Dyke 210 

Pierson  v.  Van  Bergen.  .35,  39 

Place  V.  Hayward 354 

Plass  V.  Houseman 3.39 

Piatt  V.  Piatt 85.  3.56 

Piatt  V.  Towey 182 

Plimpton  V.  Bigelow 310 

Plumb  V.  Tubbs 7 

Poillon  V.  Poillon 

270.  282,  300,  301 

Pollock   V.    Pollock 269 

Pool  V.   Safford 603 

Poole,  Matter  of 169 

Porges  V.  Cohen 212 

Porter  v.  McGrath 15 

Porter  v.  Williams 542 

Post  V.   Post.... 61.   63,   86.  94 

Potter  V.  Low .566.  573,  574 

Potter  V.  Van  Vranken 208 

Potts  V.  Baldwin 357 

Powell  V.  A'N'aldron 595 

Power  V.  Onward  Cons.  Co.  164 

Powers    V.    Powers 289.  291 

Pracht  V.  Gunn 240 


PAGE. 

Pratf  V.  Pratt 271 

Prentice  v.   Jansen 36,  86 

Prentiss  v.  Bowdeu 412 

Prince  v.   Brett 567 

Prince  v.  Cujas 462 

Price  V.  Price.  105.  114,  251,  278 

Prior  V.  Prior 41,  44,  77,  95 

Pritchard  v.  Dratt 33,  47 

Produce  Bk.  v.  Morton.  . .  . 

413,  457,  510 

Purdy,   Matter  of 390 

Purdy  v.  Wright 34 

Q. 

Queens    Co.    Water   Co.    v. 

Monroe 447,  448 

Quick  V.  Keeler 420 

Quigley  v.  Quigley 276 

R. 

Radley  v.  Fisher 367 

Rainsford  v.   Temple.  .551,  566 
Ramsdeu    v.    Ramsden.  . .  . 

289,  294,  297 

Ramsey  v.  Erie  Ry.  Co 320 

Randall   v.    Randall 301 

Rasch,   Matter  of 358 

Rathbone   v.    Hooney. 142 

Rathbone   v.    Wirth 451 

Raven    v.    Smith 162 

Raynor  v.  Timerson 14 

Read  v.  Brayton 208 

Read   v.   Curtin 396 

Read  v.  Patterson. 370,  374,  382 

Read  v.  Williams 394 

Read   v.   Worthington 421 

Rector,  etc.,  of  Christ's  Ch. 

V.   Mack   142 

Redfield   v.  T^   &   S.   R.   R. 

Co 5,  13 

Redmond  v.  Goldsmith.... 

539,  558,  565 

Reed   v.    Champagne. 551 

Reed  v.  Loucks 22 

Reod  V.  Lozier 382 


XXXVlll 


TAT.LK   OF    CASES. 


PACK. 

Rood  V.  lliHHl.40.  41,  44,  SI,  95 

Reese  v.  Reese "  "- 

Reformed    Ch.    v.    School- 
craft    21 

Reichert   v.    StilwoU 123,  125 

Reierson  v.  Reiersou 2(10 

ReifEeld,  Matter  of o!K) 

Reis  V.  Rohde 481 

Relf   V.   Rundle 314 

Renaud  v.  O'Brien 412 

Reynolds  v.  Aetna  Life  Ins. 

Co 539 

Reynolds  v.   Ellis -405 

Reynolds  v.  McElhone.  . . .  553 

Reynolds  v.  Park 1^2 

Reynolds  v.  Telfair TO 

Rhodes  V.  Linderman 507 

Rich  y.  Rich So 

Richardson  v.  Case 403 

Rlehter   v.    Poppcnhausen.  .  .  4G2 

Riggs  V.  Pnrsell T9,  140 

Riley   v.   Riley 2ri;l 

Riley  V.  Waller 349 

Risley   v.    Rice 6,    7,  16 

Ritter  v.  Greason 582 

Rixa  V.  Rixa 276 

Roberts  v.  A.  &  W.   S.  R. 

R.  Co 4^ 

Roberts  v.  Baumgarien 5 

Robertson  v.  Bullions 340 

Robertson  v.   Smith 46G 

Robinson  v.  Brown 452 

Robinson  v.  Govers 103 

Robinson  v.  Kime.189,  191,  192 

Robinson  v.  Kinne 191 

Robinson,  Matter  of 278 

Robinson  V.  Smith....;...  317 

Robinson  v.  Wheeler 189 

Rockefeller  v.  Taylor 449 

Rockwell  V.  Geery 378 

Rockwell  V.  Saunders 220 

Roe   V.    Roe 27.5,  202 

Rogers  v.  Com.  Council  of 

Buffalo 447,  480 

Rogers   v.    Marshall 18 

Rogers.  Matter  of 351 

Rogers    V.    O'Brien 449.  4.50 


PAGE. 

Rogers  v.  Patterson.  .  .377,  380 

Rogers  v.  Rogers 205 

Rogers  v.  Sinsheimer.  . .  ..5,  8 
Rogers    v.    Supervisors    of 

Westchester 447 

Rogers  v.  Wheeler 3.50 

Kohshand  v.  Waring .532 

Romaine  v.  Chauncey 281 

Ronan  y.   Kounn 300 

Roosevelt  v.  Draper 444 

Roosevelt  v.  Giles 181 

Root  V.  Wright 1.35 

Rose,  Matter  of 500 

Rose  V.  Rose 291 

Rosekrans    v.    Rosekrans.  .  43 

Rosenberg  v.  Boehm 4.50 

Rosenfield,  Estate  of 3.50 

Ross  V.  Boardman 14;'. 

Ross  V.  Harden -349 

Rothschilil  V.  Gould 

552,    553,  579 

Rothstein  v.   Rothstein.  . .  .  273 

Rourke  v.   Elk  Drug  Co ...  .  437 

Rouse  V.  Haas 2.30 

Row  V.  Row 61 

Rowland.  Matter  of 506 

Royer    Wheel    Co.    v.    Field- 
ing    413 

Ruger   v.    Meckel 251,  285 

Ruhe  V.  Law 140 

Rundle  v.  Allison 351 

Ruppancr,  INlatter  of. .  .898,  400 

Russell  V.  Austin 105 

Russell  V.  Somerville.  .508,  .525 

Rutherford  v.   Soop 363 

Ryan.  Matter  of 566 

Ryder  v.  Coburn 50 

s. 

Sacia  v.  O'Connor 23 

Sackett  v.   NcAvton .514.  529 

Sage  V.  Mosher 4.32 

Sager  v.  Blain 210 

Sagory  v.  Dubois 338 

St.  John  v.  Bumpstead.  ...  15 

Sale  v.  Lawson 512 


TABLE   OF   CASES. 


XXXIX 


PAGE. 

Salmon  v.   Allen 136 

Salomon  v.  Van  Praag....  209 

Saltsman   v.    Schults i  439 

Samuels  v.  Samuels 307 

Sanders  v.  Euling 439 

Sandford  v.   Can- 562 

Sandford  v.  Sandford 305 

Sands  v.  Craft' 361 

Sands  v.  Roberts 551 

Sanford  v.   Sanford 362 

Satterlee    v.    Kobbe 

30,  37,  43,  48 

Savage  v.  Perkins 210 

Sayles  V.  Naylor...lO,  594,  595 

Schanck  v.  Conover 528 

Schermerhorn    v.    Barhydt. . 

371,  457 

Schermerhorn  v.  Owens...  581 
Schillinger   Cement    Co.   v. 

Arnott 163 

Schloemer  v.  Schloemer. . .  300 

Schmidt  v.  Schmidt 284 

Schneider   v.   Altman 562 

Schnitzer  v.   Willner 546 

Schrady  v.  Logan 255 

Schriver  v.   Schriver 142 

Schroeder  v.  Gurney 176 

Schultz  V.  Schultz 389 

Schulz,  Matter  of 349 

Schuyler  v.  Marsh 62 

Schwab  V.  Cohen 564 

Schwartz  v.  "Wechler 437 

Schwietering  v.  Rothschild  225 

Schwinger  v.  Hickok 135 

Scofield  V.  Whitelegge.215,  216 

Scott  V.  Douglass .35 

Scott  V.  Durfee 522 

Scott  V.  Elmore 594 

Scott    V.    Guernsey 50,  100 

Scott'  V.    Schufeldt 254 

Scoville  V.  Shed 407 

Seagrist  v.  Sigrist 400,  401 

Seaman  v.  Clarke 358 

Second  Nat.  Bk.  of  Oswego 

V.  Dunn 227,  240 

Security  F.  Ins.  Co.  v.  Mar- 
tin    131 


PAGE. 

Seeley   v.    Garrison.  ..  .531,  550 

Sells,  Matter  of 494 

Selover  v.  Coe 

359,  370,  371,  379,  381 

Serven  v.  Lowerre 574 

Seymour,   Matter  of... 503,  598 

Seymour  v.  Van  Curen. .. .  212 

Shand  v.  Hanley 431 

Shannon  v.  Pickell 48 

Sharpe  v.  Freeman 356 

Shaunessy  v.  Traphagen . .  507 

Shaw  V.  Dwight 414 

Sheehan  v.  Golden 221 

Sheehan  v.  Hamilton.  ..  .7,  16 

Sheldon  v.  Wickham 598 

Shepherd   v.    Dean 564 

Sheridan  v.  Andrews 24 

Sherry   v.   Frecking 4 

Sherwood  v.  Dolen 562 

Shorter  v.  Mackey 361 

Shriver  v.    Shriver 78 

Shult's  V.  Andrews 538,  543 

Sibley  v.  Sibley 307 

Sicker  v.    Sicker..... 35 

Sickles  V.   Hanley 556,  588 

Sidway  v.   Sidway 104 

Siedenbach  v.  Riley 217 

Siefke  v.  Minden 466,  469 

Siegel  V.  Cohen 375 

Siewert  v.  Hamel 145 

Sigua  Iron  Co.  v.  Brown. .  3.38 

Silver  Lake  Bk.  v.  North...  313 

Silvernail,  Matter  of 146 

Simar  v.   Canaday ".  90 

Simms  v.  Frier 583 

Simms  v.  Voght 133 

Simon  v.  Simon.  .  .288,  289,  291 

Simons  v.  Steele 365 

Simpson  v.  St.  John 211 

Sims  V.  Frier 526 

Singer  v.  Singer 284 

Sinnott  v.  Feiock 204,  207 

Sirrett,  Matter  of 501 

Sisson  V.  Cummings 11 

Skelly  V.  Jones 24 

Skidmore  v.  Post 361,  366 

Slack  V.  Heath 237,  239 


xl 


TABLE   OF    CASES. 


PAGE. 

Slee   V.    Bloom 'M2 

Sloan   V.   Imploiueut    l>r:il- 

iTs'   Mfg.  Co •S2:>.  L'27 

Slocum  V.  Slocuin 249 

Sluyter  v.  Smith .")48 

Smith  V.  Crissey 4.'>3 

Smith   V.    Cutter 

512,  517,  531,  54U 

Smith  V.  Danzig 329 

Smitli  V.   Davis 512 

Smith    T.    Gold   Stock   Tel. 

Co 342 

Smith  V.  Johnson 

569,  5&4,  585,  590 

Smith  V.  Joyce 131 

Smith  V.  Kearney 4fK5 

Smith  V.  Long 13 

Smith  V.  Luce 532 

Smith    V.    Mahony 498,  500 

Smith  V.   Paul 545 

Smith  V.  Robei-tson 373 

Smith   V.   Secor 79,  96 

Smith   V.   Silsbe 170 

Smitli  V.   Smith 

34,  61,  65.  94,  113,  266,  267,  268 

Smith   V.   Soper 383 

Smith  V.   Tozer 596 

Snow  V.  Hamilton 398 

Snyder   v.   Stafford 1:59 

Southard  v.  Benner 405 

Spalding  v.   Spalding.  .22ri.  226 

Sparrow  v.  Kingman 107 

Spencer   v.    Berdell.  . .  .590.  595 

Spencer   v.    Cuyler 511 

Spencer  v.   Harford 156 

Spies,  Matter  of 306 

Sprague   v.   .Jones ,  134 

Spring  V.  Sandford 45 

Spring   V.   Short 414.  420 

Squire  v.   Young 579 

Stackhouse  v.   Stotenbur.  . 

176.  179 
Stiindard  Sewing  .Mach.  Co. 

V.    Heyman 240 

Standart   v.    Burt'is 4.^)0.  4.^3 

Starin   v.   Mayor 4.10 

Starkweather      v.       Stark- 
weather    297 


PAGE. 

State  Bk.  of  Syr.   v.  Gill.  . 

427,  002 

Stauff  V.  Maher 203.  2(M 

Steinhardt  v.  Michalda 512 

Steinhart    v.    Farrell 564 

Stephens   v.    Meriden    Brit- 
annia  Co .596.  598 

Sternberger  v.   Bcrnheimer  457 

Stevens  v.  Dewey 567 

Stewart  v.  McMartin 406 

Stewart,  Matter  of 517.  546 

Stewart  v.  Smitli 113.  115 

Stewart  v.  Stewart 17 

Stillwell  V.  Van  Lpps 413 

Stimpson  v.  Reynolds 230 

Stivers  v.   Wise 249,  2.59 

Stonebridge  v.  Perkins....  217 

Stoors  V.  Kelsey 511 

Storm  V.  Waddell.421.  422,  423 

Stowell  V.  Otis 217 

Strang  v.  Cook 449.  4.51 

Strange  v.    Longley 416 

Strauss   v.    Yorkville   Bk.  .  5.52 

Strowbridge  v.  Strowbridge  307 

Strong  v.  City  of  Bklyn ...  4 

Struppman  v.  Muller...44,  49 

Strybing  v.  Hicks 502,  520 

Sti-yker,  Matter  of 333 

Stuari  V.  Kissam 371 

Stuber  v.  Coler 447 

Stuyvesant   v.   Grissler....  26 

Sullivan  v.  Sullivan 271 

S  after  v.  City  of  N.  Y 19 

Svenson  v.   Svenson. .  .254,  255 
Sweet  V.  B.,  N.  Y.  &  P.  R. 

R.   Co 5 

Swift  V.  Hart 415,  432 

Sylvester  v.   Reed 423.  427 


T. 


Tabor  v.   Bunnell 416 

Taft  V.   DA\ight 414 

Taggart  v.  Ilurlhurt .56 

Taggart  v.   Wade 129 

Talcott  V.   Belding 224 

Talcott  V.  City  of  Buffalo.  .  446 


TABLE   OF   CASES. 


xli 


PAGE. 

Tanner   v.    Niles 83 

Tappen  v.   Crissey 453 

Tarbell  v.  Griggs 410 

Taylor  v.  Crane 13 

Taylor  v.  Derrick 145 

Taylor,  Matter  of 352 

Taylor  v.  Millard 31 

Taylor  v.  Persse 512 

Taylor  v.  Taylor 291 

Teller  v.  Randall 518 

T.  Elwood  Ice  Co.  v.  Mer. 

Marine   Hosp.    Serv 318 

Terrell  v.  Wheeler 15 

Terry   v.   Hultz 520 

Terwilliger  v.  Wheeler....  167 

Thoesen.  Matter  of 4.34 

Thomas  v.  Crofut 189 

Thomas  v.  Harmon 127 

Thompson  v.  Biirhans 7 

Thompson  v.  Clark 24 

Thompson        v.        Colonial 

Assn.   Co 437 

Thompson  v.  Hart 35 

Thompson.   Matter   of 582 

Thompson     v.     Manhattan 

Ry  Co 189 

Thompson  v.   Nixon 573 

Thompson  v.  Thompson...  280 
Thompson  v.  Whitmarsh.  . 

348,  349 

Thorn  v.  Lazarus 230 

Thorne  v.  Newby 135 

Thorp  V.  Thori5 2a3 

Thwing  V.  Thwing 67 

Ticknor  v.   Kennedy 462 

Tilby  V.   Hayes 260 

Tillotson  V.  Wolcott 597 

Tilney   v.    Clendenning.  . .  .  363 

Tilton   V.   Vail.  .44,    58,   81,  99 

Tim  V.  Tim 269 

Timerson   v.    Timerson ....  268 

Timon  v.   Claffy 390 

Tinker  v.  CroolvS 567 

Tinkey  v.   Langdon 596 

Titus  V.  Poole 363 

Tockerson  v.  Chapin 323 

Todd  V.  Crooke 586,  589 


PAGE. 

Tolles  V.  Ayood...406,  409,  423 

Tompkins  v.  Purcell 500 

Tompkins  v.  Hyatt 99 

Tonnelle  v.  Hall 351 

Toole   V.   Toole 43,  77 

Town  of  Hempstead,  Mat- 
ter of  582 

Townsend  v.  Bogert 47 

Townsend    v.    N.    Y.    Life 

Ins.  Co 364 

Townsend  v.   Warlc 169 

Townshend    v.    Townshend  43 

Townshend  v.  Thomson .  . .  143 

Traud  v.  Magnes 377 

Treacy  v.   Ellis 91 

Tremain  v.  Ricliardson.  . .  .  556 
Tribune    Association,    Mat- 
ter of  603 

Tripp  V.  Smith 218 

Truesdell  v.  Sarles 407 

Trull  V.  Granger 13 

Trust  V.  Pirsson 157 

Trustees    of    Bd.    of    Pub., 

Matter  of 503,  572 

Tucker  v.   Tucker 54,  65 

Turner  v.  Davis 17 

Turner  v.  Niles 43 

Tyler  v.  Whitney 511 

Tyler  v.  Willis 587 

u. 

Uhlmann  v.  Uhlmann 

267,  274,  288 

Ulbricht  v.  Ulbricht 275 

Uline  V.  N.  Y.  C.  &  H.  R. 

R.  Co 3 

Ulster    Co.    Savs.    Inst.    v. 

Young 357 

Underhill  v.  Jackson 62 

Underhill  v.   Underhill 68 

Underwood  v.  Sut'cllffe.  ..  . 

586.  598,  599 

Union  Banlc  v.  Sargeant.  ..  544 

Union  Canal  Co.  v.  Young.  5 
Union   Dime    Sav.    Inst.   v. 

Andariese 72 


xlii 


TABLE    OF   CASES. 


PAGE. 

Uuiou  Nat.  Bk.  v.  Waruer. 

429,     432 
Uniou  Trust  Co.  v.  Olmsted 

127,     133 
United    Press    Co.    v.    Abell 

Co 438 

U.  S.  Land  &  Bmig.  Co.  v. 

Pike 545 

U.   S.   Land   &  Investment 

Co.  V.  Bussey 228 

U.  S.  Trust  Co.  V.  Schliep.     134 
U.      S.      Vinegar     Co.      v. 

Schlegel 313 

Utica  City  Bk.  v.  Buell 541 

Utica  Ins.  Co.  v.  Power. . .     424 


Vadney  v.   Tliompson 108 

Vail  V.  Vail 61 

Valentine   v.    McCue 67 

Valentine   v.   Valentine 272 

Valiente  v.  Bryan 582 

Valleau  v.  Vailean 268 

Van   Aernam  v.  Bleistein...  439 
Van   Aernam   v.   Van   Aer- 
nam    278 

Van  Alst  v.  Hunter 387 

Van  Alstyne  v.  Cook 422 

Van  Arsdale  v.  Drake.  .44,  65 
Van    Benthuysen    v.    Van 

Benthuysen 275,  291 

Van  Bergen  v.  Van  Bergen  195 

Van  Cleef  v.   Sickles.  .417,  420. 

Van  Dam  v.  Tapscott 460 

'    .ndeburg  v.  Gaylord 588 

Vandenburgh   v.   Van   Val- 

kenburgh 225 

Vanderbec'k      v.      City      of 

Rofh 104,  114 

Vanderbilt  V.  Schreyer 134 

Vandcrcook    v.    Cohoes    Sav. 

Inst 139,  140 

Vanderwerker    v.    Vander- 

werker 44 

Van  Deusen  v.  Young 

189,   192,  199 


PAGE. 

Van    Dyke   v.    N.   Y.    State 

Banking  Co.  .  .  .225,  229,  230 

Van  Dyne  v.  Thayre 123 

Van  Ness,  Matter  of 548 

Van  Orman  v.  Pbelps 30 

Van  Rensselaer  v.  Ball...  26 

Van  Rensselaer  v.  Owen.  .  20 

Van  Rensselaer  v.  Wright.  26 
Van  Siclen  v.  Jamaica  Elec. 

L.  Co 200 

Van  Slooten  v.  Dodge. 361,  363 

Van  Tassel  v.  Van  Tassel.  69 

Van  Vechten  v.  Hall 504 

Van  Veghten  v.  Van  Vegh- 

ten 285 

Van  Vleck  v.  Van  Vleck .  .  301 

Van  Voast  v.   Gushing. . .  .  152 
Van  Voorhis  v.  Brintnall.  . 

251,  203 

Van  Wagenen  v.  Botsford.  176 

Van  Wezel  v.  Wyckoff 371 

Van   Wyck  v.   Baker.  .428,  431 

Velten  v.  Vogt 146,  148 

Vereinigte       Pinsel-Fabriken 

V.  Rogers 465 

V^ermont'     Marble     Co.     v. 

Wilkes 594,  597 

Verplanck  v.  Merc.  Ins.  Co.  324 

Voessing  v.   Voessing 42 

Voorhees  v.  Howard 410 

Voorhees  V.  Voorhees..386,  390 

Vrooman  v.  Clow 430 

Vrooman  v.  Jackson 4 

w. 

Wager  v.  Link 133,  134 

Wager  v.  Wager 42,  393 

Waggoner  v.  .Termaine.  . .  .  196 
Wainman  v.   Hampton.... 

36,  37,  50 

Wainwright  v.  Tiffany 517 

Wait,  Matter  of 361 

Waite  V.  Van  Demark 363 

Wakeman  v.  Grover 415 

Waldman  v.  O'Donnell 574 

Waldron,  Matter  of 390 


TABLE   OF   CASES. 


xliii 


PAGE. 

Walker  v.  Schuyler 114 

Walker  v.  Walker. 57,  281,  307 

Wallace  v.  Berdell 9 

Wallace  v.  Jones 452 

Wallace  v.  McEchron 

31,  37,  43,  48 

Wallace  v.  Payne 387,  401 

Wallace  v.  Swinton 5 

Walter  v.  De  Graaf 40 

Walter   v.   Walter 62,  65 

Waltermire  v.  Waltermire. 

287,  288,  291 

Walton  V.  Walton 290 

Wambaugh  v.  Gates 

373,   374,  384 

Wandell  v.  Wandell 289 

Ward  V.  Roy 498 

Ward  V.  Ward 42 

Warfield  v.  Crane 56 

Waring  v.  Waring 

278,    294,  296 

Warrin  v.  Baldwin. ..  .449,  450 
Wash.  Lighting  Co.  v.  Dim- 

mick 482 

Waterbury  v.  Deckelmann.  201 

Watkins,  Matter  of 113 

Watson  V.  Fitzsimmons . . .  568 

Weaver  v.  Brydges.  ..  .547,  558 

Weaver  v.  Weaver 286,  287 

Webb  v.  Overmann 

427,  525,  574 

Weber  v.  Weber 513 

Webber  v.   Manne 236 

Weed  V.  Weed 393 

Weeks  v.  Coe 369 

Weeks  v.  Weeks 50 

Weyman  v.  Childs 498 

Weidenfeld  v.  Keppler. . . .  438 

Weil  V.  Lavenson 419 

Weiss  V.  Ashman 581 

Welch  V.  Cook 495 

Welch  V.  Tobias 430 

Welling  V.  Ryerson 139 

Wells  V.  Betts 396,  397 

Wells  V.  Yanderwerker.83,  84 

Wells  V.  Wells 281,  294 

Wendel  v.  Wendel 255,  257 


PAGE. 

Wenk  V.  City  of  N.  Y.  .447,  454 

Westcott  V.  Fargo 436,  439 

Western  R.  R.  Co.  v.  Bayne  215 
Western     Reserve    Bk.    v. 

Potter   313 

Weston  v.  Stoddard 

30,  37,  42,  83 

Wetmore  v.  Wetmore 

280,  306,  409,  503,  598 

Wetyeu  v.  Fick 102 

Whalen  v.  Teunison 503 

Wheeler  V.  Allen 209 

Wheeler  v.  Wheeler 80 

Whispell  V.  Whispell.  .286,  292 

AVhitaker  v.  Young 457 

AVhite   V.   Madison 231 

White  V.  Story 115,  361 

White's   Bk.   of  Buffalo   v. 

Farthing 415,  416,  430 

Whitcomb  v.  Hoffman 217 

Whitman  v.  City  of  N.  Y.. . 

176,  184 

Whitney  v.  Welsh 588 

Whitney  v.   Whitney.  .302,  303 
387,  393,  394 
Whittemore    v.    Judd    Lin- 
seed Oil  Co  469 

Whyte  V.    Denike 594 

Wicks   V.   Monahan 438,  439 

Wightman  v.  Wightman. . 

245,  252 

Wilder   v.    Ballou 358 

Wilds,   Matter  of 594,  599 

Wile  V.  Brownstein 212 

Wilkes    V.    Harper 375 

Wilkinson   v.   Paddock.... 

147,  422 

Wilklow   V.    Lane 5 

Williams  v.  Boynton 451 

Williams   v.    Clark 50 

Williams  v.  Peabody 189 

Williams  v.  Thorn 

406,  409,  4.33 

Williams  v.  Welch 214 

Williams  v.  Wi'^iams 

288,  289,  292 

Willis  V.  McKinnon 9 


xliv 


TABLE   OF   CASES. 


PAGE. 

'illis  V.  O'Brien 206 

Willis  V.  Sharp 348 

Wilmersdoerffer     v.     Lake 

Mahopac   Imp.    Co 325 

Wilson  V.  Andrews 521 

Wilson  V.  Davol 24 

Winans  v.  Winans 275 

AVinfield  v.  Si'aconi 43,  55 

Wing  V.  De  La  Rionda ....  15 

Wing  V.  Disse 10,  594,  603 

Winslow  V.  Pitkin 414 

Winston   y.   Winston 272 

Winton  v.  Winton 307 

Wisconsin  F.  Ins.   Co.   Bk. 

V.  Hobbs 229,  237 

Wise  V.  Grant 207 

Wiseman  v.  Wingrove....  82 

Witbeck  v.  Van  Rensselaer  27 

Witlierliead   t.    Allen.  .436,  441 

Witthaus  V.  Schenck 105 

Woerishoffer  v.  North  River 

Con.    Co 333 

W^olcott  V.  Weaver 131 

Wood  V.  Fleet 31 

Wood  Y.  Hunt 430 

Wood  V.  Morehouse 67 

"/v'ood  y.  Orser 206,  220 

Wood  V.  Wood 9,  266,  298 

Woodburn  v.   Chamberlain  221 

Woodhull  V.  Little 67 

WoodhuU  V.  Rosenthal.  ...  3 

W'oodin   V.    Bagley 363 


PAGE. 

Woodman  v.   Goodonough.  574 

Woodrick  v.  Woodrick....  272 

Woodward  v.  .Tniues 35 

Woolf   V.    Jacobs 548,  553 

Wortman  v.  Wortnian.284,  285 

Wottou   V.    Wise 187 

Wright    V.    Douglass 314 

Wright  V.  Hayden 352 

Wright   V.    Nostrand. 

49S,  563,  590,  591,  592,  600 

Wright  V.   Rosenbloom ....  449 

Wymac,  Matter  of 

503,    527,  541 


Yerkes  v.  McFadden 460 

Youmans   v.   Francirco.  . .  .  212 

Young    V.    Atvi-ood 221 

Young   r.   Heermans 418 

Young  V.  Young 271 

Younger  v.   Duffie 386,  388 

z. 

Zelie    V.    Yroman 531,  546 

Zeltner   v.   Zeltner  Brewg. 

Co 332 

Ziegler    v.    Chapin 446 

Zorn  V.  Zorn 270,  293 

Zorntlein   v.   Bram 45 

Zuenzer  v.  Minzeumair.  ...  35 


Ti^BLE  OF  CITA^TIONS. 


CODE    OF   CIVIL  PROCEDURE. 


SEC.  PAGE. 

982  98,  161 

9^3  488 

985  34,  98 

1012 327 

1015  117,  149 

1229 261,  293 

1235  221 

1240  119 

1242  69 

1260 470 

1279  365,  474 

1316 100 

1327  307 

133(; lOO 

1342 ,547 

1384  70= 

1391  573 

1434  66,  67 

1435 67-68 

1496 8,  14 

1497 8,  14 

1498 7,  124 

1499  7,  101 

1503  11 

1504  :  25,  27 

1505 25-26,  27 

1506 27 

1507  26 

1508 28 

1509 27-28 

1510  28 

1511 12-13.  179 

1512 16 

1513 16 

1514 17 

1515  13 

1516  11 

(xlv) 


SEC. 

14  . 

PAGE. 

565 

26  .  . 

521 

52  .  . 

522 

73  .  . 

313 

90  .  . 

555 

184  .  . 

72 

190  .  . 

99 

341  .  . 

311 

390  .  . 

. .314-315 

401  .  . 

102 

410  .  . 

351' 

414  .  . 

314 

432 

320 

436  .  . 

,  .  . .  500 

445  .  .  . 

.  .94,  458 

452  .  .  . 

.  .11,  240 

454  .  . 

373 

484  .  . 
521 

.215,  349 

48 

603  .  . 
626 

.344,  489 
321 

715  .  .. 
738  .  . , 

30f 

1,  592-593 
...  165 

761  .  . 

...  239 

763  .  .  , 

...  131 

766 

. . .  354 

770  .  . , 

39 

779  .  . , 

. ..  304 

791  .  .  . 

...  302 

817  .  .  . 

...  164 

831  .  .  . 

. . .  272 

842  .  .. 

852  .  .  . 

59. 

113,  556 
...  558 

885  ..  , 

. . .  565 

888  .  .. 

. . .  562 

968  .  . 

344  489 

970  .  .. 

30,  51,  260, 

344,  489 

xlvi 


TABLE   OF   CITATIONS. 


SEC.  PAGE. 

1517  .  .   12 

1518 12 

1519  8,  20 

1520 8,  20,  21 

1524  2:i 

1525  21,  23 

1526  22,  23 

1528 22 

1529 23 

1530 21 

1581  9 

1532 36 

1533  38,  &i 

1535 39 

1536 40 

1537  36,41,  42,  400 

1538 43,  45,  58,  86 

1539 43-44,  49 

1540  49 

1541  44 

1543  36,  48 

1544  30,  51 

1545 51 

1546 55 

1547 55-56 

1548 56-57,  61 

1549 57,  59 

1550 59,  60 

1551  60 

1552 60-61 

1553  02 

1554  00,  02 

1555  83 

1556  63 

1557  93,  94-95 

1558 93,  98,  99 

1559  83,  93 

1560 59,  60 

1561  52,  112 

1562 52-53,  90 

1563  58,  73,  90 

1564 90-91 

1565  91-92 

1566 92 

1567 88 

1568 88-89 

1569 89 


SEC.  PAGE. 

1570 89 

1571  73,  90 

1572  73,  87 

1573  57,  73 

1574 82 

1575 73,  82 

1576  71,  73 

1577  74,  85,  94,  95 

1578  43,  96 

1579 84 

1580 &1-85,  86 

1581 57-58,  87 

1582  .  .., 87-88 

1583  92 

1584 97 

1585  97 

1586  97 

1587 86,  93-94 

1588 45 

1589 49,  85,  93 

1590 31-32 

1501  32 

1592 32 

1593  32 

1594 42-43 

1595  97 

1596 102 

1600 104,  106,  107 

IGOl 105,  106 

1602 106 

1603  106 

i604  107 

1005  106 

1607  108,  110 

1608 113 

1609 113-114 

1610 112,  115-116 

1611  116 

1612 116-117 

1613  104,  117 

1614 120 

1615 119-120 

1616 119 

1617 104,  108-109,  111 

1618 109 

1619 104,  109-110,  112 

1620 Ill,  112 


TABLE   OP   CITATIONS. 


xlvii 


SEC.  PAGE. 

1621 ', Ill,  112 

1622 Ill,  112 

1623 Ill,  118 

1624  lis 

1625 118 

1626 125,  132 

1627 128,  134 

1628  .  124,  125 

1629 130,  164 

1630 124-125,  164 

1631  142 

1632 142 

1633  146 

1634 135,  137 

1635 135,  137 

1636 130-131,  135 

1637 130-131,  136 

1638 175,  176,  177, 

178,  179,  182,  183 

1639 178-179 

1640' '...179,  180,  181 

1641 180-181 

1642  181,  182 

1643 182,  183-184 

1644 183 

1645 181,  183 

1646 174,  181,  184-185 

1647 103,  185,  186 

1648 103,  186 

1649 103,  186 

1650 175,  178,  310 

1651 190 

1652  189 

1653  190 

1654 189 

1655 191,  192-193 

1656 190,  191,  192,  193 

1657 193,  193-194 

1658 193,  194 

1659 191 

1660 195 

1661  195,  196 

1662 197 

1663  195 

1604  198 

1665  189 

1666 198 


SEC.  PAGE, 

1667  199 

1668 198,  199-200 

1669 201 

1670 21,  23,  112 

1674 169 

1675  98 

1676 84,  92,  97,  132,  133 

1677 97-98,  133 

1678 66,  68,  69-70,  72,  138 

1679 72 

1680 7-8 

1681 108 

1682 18-19 

1683  19 

1684 19 

1688 112 

1688a-1688i  182 

1689  215 

1690 205-206,  216 

1691 212 

1692 208 

1693  214 

1694 222-223,  227 

1695 205,  206,  223-224,  226 

1696  226 

1697 225,  226-227 

232-233,  235 

1698 230,  235 

1699  .  ..: 227-228,  229 

1700 230 

1701  230 

1702 231 

1703 228,  234,  237 

1704  234-235,  237 

1705 237-238 

1706 231,  233,  234 

1707 233 

1708 233 

1709 211,  231,  236,  239, 

240,  241,  242 

1710 211,  242 

1711 241-242 

1712 223,  229,  235-236,  240 

1713  242 

1714 213,  214 

1715 233 

1716 233-234 


xhiii  TABLE    OF   CITATIONS. 

SEX-.  PAGE.    SKC.  PAGE. 

1718  214.  222   1709 282,  29.">.29C,301,  304 

1720 215   1770 275,  291 

1721  21.5-2ir>   1771  .  278,279,281-282,294,295 

1722  216.  2.S7   1772 .",04.  .?06,  307.  308 

li 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 
1 


23  217  1773 305,  3(J6-307 

24  217  1774 257-258,262,273,283 

25  220  1775  319 

27  219,  220  1770 319 

28 221-222  1777  319 

30 219  1778 319-320 

33  238  1779  311,  313 

34  238  1780 310,  311-312 

35  2.38  1781 315-316,317,318,320 

30  2,39  1782 310,317,318,320 

37  1.57,  159  1783  316 

38 158,  159,  160  1784 310,  322,  323,  324 

39 158-1.59,  160  1785 322-323,  324,  325,  342 

40 160  1786 322,325,338 

41  158  1787 327-323 


1742 246-247  1788 330 

1743 247,  248,  249,  250,  1789  330-331 

252,  253.  256  1790 326,  334 

1744  249.  2.59  1791  326,  334 

1745 2.50-251  1792  334 

1746  2.52  1793  322,  337 

1747  252  17i»4 337,  338 

1748 252,  259  1795 326,  337-338 

1749  250,  2.53  1790 340 

1750 253  1797 325,  340-341,  344 

1751 255-256  1798 341,  342,  344.  477 

1752  256  1799 341 

1753  260.  261  1,S00 344 

1754  262  1801 344-345 

1755  259-260  1802  343-344 

1756 263,  269  1803  345 

1757 271,  271-272,  275,  276  1804  318,  340 

1758 264,  205,  270  1805  336 

1759  276-277,279,281  1806  328.  .329 

1760 277-278  1807 .334-335 

1761  283  1808 326 

1762 285  1809  321,  329-3.30,  339 

1763  285,  289  1810  331,  332,  3.39 

1764  290  1811  316 

1765 290-291  1812 339,  501,  502 

1766  294,  295  1813' 336-.3.37,  443 

1767  295  1814  347,  348 

1768  264,  290  1815 347-348.  .349.  355 


TABLE  OF  CITATIONS. 


xlix 


SEC.  .  PAGE. 

181G  355 

1817 352-353 

1818 353 

1819  350,  352 

1820 352 

1821  357 

1822 357 

1823  .  . 355,  356 

1824  353,  356 

1828 354 

1831 353 

1832 353-354 

1833  354 

1834  354 

1835  368 

1836  368 

1837 369-370,  372,  373 

1838 373.  376 

1839  376,  383 

1840 376 

1841  374.  375 

1842  374,  376 

1843  377 

1844  379,  .382 

1845  379 

1846 378 

1847  383 

1848 381.  382 

1849 380,  381-382 

1850 374-375.  380 

1851 380-381 

1852 377,  383 

1853 380.  383 

1854 377.  .380 

1855  384 

1856  384 

1857  384-385 

1858 382 

1859  372 

1860 372 

1861  385,  386,  387,  388 

1862 389,  391 

1863  391 

1864 391 

1865 389 

1866  392 

1867 391,  392 

1868  372 


SEC.  PAGE. 

1869 388-389 

1870 370 

1871  404,  408 

1872  411,  419 

1873  428 

1874 433 

1875  433 

1876 421,  424-425 

1877  426,  429 

1878 427-428 

1879  .  310,  324-325,  408,  415,  .503 
1891  339 

1919  435-436,  437,  438 

1920  439 

1921  440 

1922 437,  441,  442 

1023  437,  442-443 

1924 443 

1925 444-445,  446 

19.32 4.56,  4.58.  460 

19.33  458,  464 

1934  458-459,  510 

1935  459.  .510 

19.36  4.58.  510 

1937  460 

1937-1941 510 

1938 462 

1939 463,  464 

1940  465 

1941  465-466,  510 

1942 467-468 

1943  470 

1944  471 

1946  466 

1947 466-467,  483,  484 

1948 476-477,  480.  482 

488,  489,  491 

194S-1956 473 

1949 483,  488,  491 

1950 489 

1951  493 

1952 498 

1953  492 

1954 477 

1955 481,  489,  491 

19.56 476,  491.  492 

1977  4,  10 

1978 4 


TABLE   OF   CITATIONS. 


SEC.  PAGE. 

1983    473 

19SG   Hliti.  485 

1987     491-492,  495 

2200-2292 505 

2280 505 

2357  05 

2387-2409 120 

2419-2431  323,324,339 

2432 403,  508,  509,  514, 

515,  522,  540 

2433 498,  535,  543,  546,  547 

2434 519,  520,  521,  534 

538,  539,  585 

2435  509,  513,  539 

2436 514,  515,  529,  539 

2437 531,  533,  534,  535 

2438 533,  534,  535 

2439  535,  543 

2440 535-536 

2441 515-516,  517,  518, 

529-530,  539 

2442 540,  554.  558,  569 

2443  554,  558,  569 

2444 540,  557,  559,  564 

2445  556,  569 

2446 575-576,  577,  578 

2447  .  .571-572,  573.  575,  577,  578 

2448 577-578 

2449  578 

24.50  578 

2451 548-549,  550,  552 

2452  540,  550 

2453  5.33,  534 

2454 579,  .580 

2455  581,  590 

2456  583 

2457  564,  582 

2458 500,  506,  507,  509, 

514,  .522,  529 

24.59 537,  555,  559 

2460 563 

2461  510 

2462  522 

2463 501,  502,  536,  549, 

506.  572,  574 

2464  516,  584,  587 

2465  587-588,  589 

2466  602 


SEC.  PAGE. 

2407 590-591 

2408 10,  590,  .591,  593,  600 

2409  551,  600,  001 

2470  591 

2471  003 

2471a 493-494 

2554 505-500 

2014  387 

2615  388 

2621  386 

2020  397 

2047  400 

2G53a  .  395-390,  397,  398,  399,  400 

2718  .  .360-361,362,306,307.368 
2718a 359 

2719  350 

2743  357 

2751  80 

2756 350 

2793  102 

3017  508 

3041 164,  165 

3043 501,  527 

3228  1(J8 

3229  :!68 

32.53  83 

3268 313 

3343 309,  312,  403,  508 

3.399 161.  162 

3400  171 

3401  164,  165 

3402 162-163 

3403  166 

.3404 109 

3405  170 

3400  170 

3407  170 

3408 170-171 

3409  171 

.3410  171 

3411  108.  171 

3412  166-167,  168 

.3413  104-165 

3414  160 

,3415  160 

.3416  166 

3417 168-109 

3419-3441  171 


TABLE   OP  CITATIONS.                                        11 

•       GENERAL  RULES. 

tJLE.                                                             PAGE.  RULE.                                                             PAGE. 

25 527    67  71,  141 

30 74,144,151,569     70 109 

60 131     71  

61 132-133,  138,  143  72  .  260-261,264,  271,272,  293 

62  . 70,  138    73  261 

63  .  . 141-142    75  270 

64 131,  146-147,  148,     76 261,293 

149,  150,  152     79  554-555 

65 33,47     80 332 

66 51 


SESSION  LAWS. 

PAGE.  PAGE. 

1830  ch.  320 484   1894  cb.  235 436 

1838  ch.  257 469   1894  ch.  305 207 

1841  ch.  257 247   1894  ch.  728 281 

1849  ch.  258 436   1895  ch.  891 279,  281,  294 

1851  ch.  455 436   1896  ch.  176 508 

1853  ch.  153 436   1896  ch.  272 247 

1853  ch.  238 36,  42,  392   1896  ch.  908 504 

1858  ch.  314 405,  410   1897  eh.  104 396 

1867  ch.  361 531   1897  ch.  452 283,  284 

1869  ch.  738 157   1897  ch.  598 397 

1872  ch.  161 444   1897  ch.  624 333 

1872  ch.  629 520   1897  ch.  701 396 

1874  ch.  545 520   1898  ch.  293 440 

1877  ch.  466,  §  29 333   1898  ch.  370 447 

1879  ch.  316 392   1899  ch.  661.. 272 

1880  ch.  472 45   1900  ch.  184 436 

1881  ch.  122 500   1900  ch.  742 281 

1884  ch.  285 334   1902  ch.  60 332 

1885  ch.  342,  §  7 162   1902  ch.  193 315 

1886  ch.  310,  §§  1-10 345   1902  ch.  580 501 

1887  ch.  24 247   1903  ch.  290 318 

1889  ch.  487 405   1903  ch.  311 320 

1891  ch.  210 174,  175,  176   1903  ch.  488 262,  273,  283 

177,  185   1904  ch.  318 304 

1892  ch.  301 446,  452,  455   1904  ch.  339 281 

1892  eh.  524 445   1904  ch.  386 359 

1892  ch.  591 396   1904  eh.  501 319 

1893  ch.  179 494   1904  ch.  526 174,  178 


lii  TABLE    OF    CITATIONS. 

liEVlSED    LAWS. 

I'AGE. 

1   R.  L.   524 200 

1  R.  L.  527,  §  33 188 

REVISED    STATUTES. 

PAGE.  PAGE. 

1  R.  S.  728,  §  52 598  2  R.  S.  303,  §  3 5 

1  R.  S.  729,  §  57  409  2  R.  S.  333,  §  3 1!>5 

1  R.  S.  750,  §  8 188,  189  2  R.  S.  334 LSS 

2  R.  S.  67-71 385  2  R.  S.  489 103 

2  R.  S.  114,  §  9 350  2  ».  8.  552.  §  1 205 

2  R.  S.  146  §  49 283  2  R.  8.  581,  §  28 474 

2  R.  S.  173,  §  38 408 


GENERAL  l^AJWS. 


BANKING  LAW. 


SEC.  PAGE. 

33   331 


CIVIL  SERVICE  LAW. 


SEC.  PAGE. 

27    447 

DOMESTIC  RELATIONS  LAW. 

SEC.  PAGE.         SEC.  PAGE. 

3 248  20   32,  33 

4    247,  248-249 

EXECUTIVE  LAW. 

SEC.  PAGE. 

74   67,  .345 

GENERAL  CORPORATION  LAW. 

SEC.  PAGE. 

27   475 


TABLE    OP   CITATIONS.  Uii 

INSURANCE  LAW. 

SEC.  PAGE.         SEC.  PAGE. 

40-41 332    207-208  332 

43  332    253  332 

JOINT   STOCK  ASSOCIATION   LAW. 

SEC.  PAGE. 
436 


LABOR  LAW. 

SEC.  PAGE. 

8 333 

PERSONAL  PROPERTY  LAW. 

SEC.  PAGE.         SEC.  PAGE. 

7 404,405,411,412  24-29 407 

430,  433-434,  597 

REAL  PROPERTY  LAW. 

SEC.  PAGE.         SEC.  PAGE. 

74  407,598    198 10 

78 406,  408,  409    232 405,  410,  411,  412 

170-187 101  430-431,  434,  597 

TAX  LAW. 

SEC.  PAGE.        SEC.  PAGE. 

77   504       264a 445-446,452,453,455 

259 505,  513,  531 

VILLAGE   LAW. 

SEC.  PAGE. 

126 505 


PRACTICE 

UNDER 

The  Code  of  Civil  Procedure. 


CHAPTER  XLIX. 

EJECTMENT. 


ARTICLE  I Nature  of  the  action  of  ejectment. 

ARTICLE  II..  .Parties  to  the  action. 
ARTICLE  III .  .  Pleadings  and  proceedings. 

ARTICLE  IV ..  Proceedings,  where   the   action   is   brought  for  rent   in 
arrear. 

ARTICLE  I. 

NATURE   OF    THE    ACTION    OF    EJECTMENT. 

SECTION. 

1.  Origin  and  history. 

2.  For  what  the  action  lies. 

3.  What  title  necessary  to  maintain  action. 

4.  What  may  be  recovered  in  the  action. 

Sec.    1.    Origin  and  history. 

The  action  of  ejectment  is  a  fictitious  mode  of  legal 
proceeding,  by  which  titles  to  corporeal  hereditaments 
may  be  tried,  and  possession  obtained,  without  the  pro- 
cess of  a  real  action.  (Adams  on  Ejectment,  p.  1). 
This  definition  of  Mr.  Adams  was  made  at  a  time  when 
there  were  other  forms  of  actions  by  which  the  title  to 
real  property  might  be  finally  settled.  Although  such 
actions,  which  were  known  as  real  actions,  were  not 
formally  abolished  until  a  very  late  period,  yet,  long 


"1  I'KAtTICE. 

before  the  abolitiou  of  real  aetious,  the  action  of  eject- 
iiicnt  became  the  ouly  proceediug  by  which  oue  chiiining 
real  property,  not  ouly  obtained  its  possession  but  in 
fact  settled  the  title.  The  action  was  ori<j;inally  one  for 
the  rec<>very  of  damages  for  the  onster,  and  it  was  then 
practically  only  a  personal  action  in  the  nature  of  tres- 
pass. It  next  became  a  mixed  action,  and  its  object 
then  was  to  recover  possession  of  real  property,  and  also 
damages  for  wrongs  sustained  by  the  ouster.  At  that 
period  the  effect  of  the  action  was  merely  to  s(4tle  the 
right  to  possession  of  the  i)remises,  at  the  time  the  action 
was  brought,  and  a  judgment  in  it  was  not  a  bar  to  a 
subsequent  action  by  either  party.  (Adams  on  Eject- 
ment, p.  1;  5  Wait's  Pr.  3j.  It  is  not  necessary  here  to 
give  the  methods  by  which  the  subsequent  alterations  in 
the  nature  and  uses  of  the  action  came  to  take  place; 
they  will  be  found  related  in  the  books  just  cited. 

By  the  statutes  of  this  state,  however,  the  object  of 
the  action  has  been  greatly  changed,  and  the  effect  of  the 
judgment  in  it,  has  been  very  largely  extended;  so  that 
now  it  is  practically  a  real  action,  w^hich  tests  not  only 
the  right  to  possession,  but  the  title  under  which  the 
right  exists,  Avhether  in  fee,  or  for  life  or  for  years. 
{Cacjfjer  v.  Lan.nnfj,  64  N.  Y.  417). 

A  judgment  in  the  action  practically  settles  the  rights 
of  the  parties,  not  only  to  possession,  but  to  the  owner- 
ship of  the  land.  The  common  law  name  of  the  action 
was  abolished  by  the  code  of  procedure,  but  it  was  pro- 
posed by  the  commissioners  who  reported  the  code  of 
civil  procedure  to  restore  the  name  and  call  the  action 
by  the  old  name  of  an  action  of  ejectment,  as  had  been 
done  before  the  code  of  procedure;  but  that  step  was 
not  taken ;  and  the  action  is  now  known  in  the  code  of 
civil  procedure  as  an  action  to  recover  real  property. 
It  is  a  civil  action,  with  all  the  incidents  which  belong 
to  actions  under  the  code;  and  all  the  proceedings  in  it, 
except  so  far  as  they  are  particularly  regulated  by 
article  I,  of  title  I,  of  chapter  XTV,  of  the  code  of  civil 
procedure,  are  still  controlled  b}'  the  provisions  of  the 
code,  respecting  civil  actions. 


EJECTMENT.  6 

The  onl}^  court  which  now  has  jurisdiction  of  the 
action  is  the  supreme  court.  (Vol.  I,  p.  05).  The 
rules  respecting  the  place  of  trial  of  the  action  of  eject- 
ment will  be  found  in  volume  II  of  this  book  at  page 
127  et  seq. 

Sec.    2.    For   what   the   action   lies. 

At  common  law  the  action  of  ejectment  would  not  lie 
for  anything  whereof  an  entry  could  not  be  made,  or 
whereof  the  sheriff  could  not  deliver  possession;  or  in 
other  words,  it  was  only  maintainable  for  corporeal 
hereditaments.  Thus  it  would  not  lie  for  a  rent,  an 
advowson,  a  common  in  gross,  or  any  other  thing  which 
passed  only  by  grant.  (Adams  on  Ejectment,  p.  16). 
The  rule  in  this  regard  has  not  been  changed,  and  it  is 
still  held,  that  the  action  will  lie  only  for  something 
tangible,  of  which  possession  may  be  delivered  by  the 
sheriff  to  the  plaintiff.  {Child  \.  ChappeU,  9  N.  Y. 
246).  If  the  property  sought  to  be  recovered,  is  in  it- 
self capable  of  physical  possession,  the  action  of  eject- 
ment will  lie  for  it,  although  at  the  time  for  the  trial, 
the  property  is  so  isolated  that  the  sheriff  could  not  get 
to  it  to  deliver  possession.  {Wcjodhull  v.  Rosenthal,  61 
N.  Y.  382).  It  may  be  maintained  to  recover  land  un- 
der water  (Champlain  dc  *Sff.  Lawrence  R.  R.  Co.  v. 
Valentine,  19  Barb.  484;  Blalslee  Mfg.  Co.  v.  Blakslee's 
Sons,  59  Hun,  209;  129  N.  Y.  155)  ;  and  for  made  land, 
at  a  place  which  was  naturally  below  high-water  mark 
(People  V.  Mauran,  5  Den.  389)  ;  and  it  will  also  lie  for 
land  covered  by  a  mill-dam.  {Beals  v.  Stewart,  6  Lans. 
408).  The  action  may  be  maintained  by  the  owner  of 
lands  which  are  subject  to  the  easement  of  a  highway, 
against  one  who  has  appropriated  the  highway.  {Etz 
V.  Dailij,  20  Barb.  32 ;  Ulwe  v.  IV^.  Y.  C.  &  H.  R.  R.  R.  Co., 
101  N.  Y.  98,  123).  Of  course,  the  action  may  be  main- 
tained by  the  owner  of  premises  against  one  claiming 
an  easement  by  certain  conveyances.  {Howe  v.  Bell, 
143  N.  Y.  190).  The  running  of  trains  over  the  high- 
way is  such  an  appropriation  of  it  as  will  authorize  the 
owner  of  the  fee  to  bring  the  action  of  ejectment  against 
the  railroad  company.      (GV/.s-  TAght  Co.  of  Syracuse  v. 


4  ruAcTici:. 

A'..  W  .  d-  ().  I!.  A'.  To..  11  r\\.  IMoc.  Kep.  239;  s.  c,  51 
Hun,  111);  Carixiihr  v.  (>.  d-  N.  A'.  A'.  To.,  24  N.  Y.  655). 
So,  Ur'  action  mav  lie  iiiaintaiiUMl  against  a  (x'l('<iTa])li 
company  which  permanently  appropriates  a  portion  of 
the  highway  by  i3uttiug  up  its  poles,  by  the  adjoiuiug 
owners  who  also  own  the  fee  of  the  street.  {I'Jcls  v. 
Am.  Tchphonv  d  Tchyraph  Co.,  143  N.  Y.  133).  The 
owner  of  land  which  has  been  unlawfully  taken  for  a 
highway  by  a  munici])al  corjxti-ation  under  a  claim  of 
right  against  him,  may  maintain  ejectment  to  recover  it. 
{Strong  v.  Citg  of  Brooklyn,  68  N.  Y.  1).  So,  it  is  held 
that  ejectment  lies  by  a  municii)al  corp(>ration  against 
individuals,  who  erected  a  pier  without  authority  on 
lands  owned  by  such  municipality.  (  Mayor,  etc.,  of 
N.  Y.  V.  Taiw,  125  X.  Y.  380).  An  action  in  the  name 
of  the  people  may  be  maintained  for  any  real  projx'rty 
which  has  vested  in  the  people  of  the  state  by  escheat, 
or  by  conviction  or  outlawry  for  treason.  It  is  the 
duty  of  the  attorn(y-general  to  bring  such  an  action  in 
every  proper  case.  ( Co.  Civ.  Proc.  §  1977 ) .  The  pro- 
ceedings in  such  action  and  the  preliminary  steps  to  be 
taken  by  the  attorney-general  before  bringing  it,  are 
regulated  by  section  1978  of  the  code  of  civil  procedure, 
and  the  four  subse<|uent  sections;  but  the  action  is  one 
which  is  so  seldom  brought  that  it  is  not  necessary  to 
quote  those  sections  in  this  book. 

It  was  held  by  the  superior  court  of  the  city  of  New 
York  that  an  action  of  ejectment  would  lie  for  land  of 
the  plaintiff  occupied  by  an  over-hanging  wall  of  the 
defendant  (SJicrry  v.  FrecJdny,  4  Duer,  452)  ;  luit  this 
case  was  overruled  by  Aiken  v.  Benedict  (39  Barb.  400), 
which  held  that  an  action  of  ejectment  would  not  lie  for 
land  over  which  the  gutter  of  the  defendant  extended, 
and  that  the  remedy  in  such  case  was  an  action  for 
damages  for  the  nuisance.  The  same  thing  was  held  in 
Vrooman  v.  Jackson,  (6  Ilun,  326),  and  said  in  Hoff- 
man v.  Armstrony,  (48  N.  Y.  201,  203)  ;  the  same  rule 
was  also  laid  doAvn  by  the  general  term  of  the  fifth  de- 
partment in  the  case  of  LepreU  V.  Khinstchmidt,  (17  N. 
Y.  St.  licp.  231 )  ;  but  upon  appeal  to  the  court  of  ap- 
peals that  court  declined  to  decide  the  question,      (s.  c., 


EJECTMENT.  5 

112  N.  Y.  361).  It  is  well  settled  that  the  action  will 
not  lie  for  an  easement,  as  a  rij^ht  of  way  (Reclfield  v.  U. 
tC-  *Sf.  /?.  R.  Co.,  25  Barb.  51;  Union  Canal  Co.  v.  Young, 
1  \\'har.  110)  ;  nor  a  right  to  use  a  wharf  or  pier  {Child 
V.  Chappell,  9  N.  Y.  216 ;  Maijor,  etc.  v.  North  Shore  S. 
I.  Ferry  Co.,  55  How.  Pr.  151)  ;  nor  for  the  right  to 
flood  land  (Wilklow  V.  Lane,  37  Barb.  211);  nor  for 
anything  merely  lying  in  grant  and  not:  capable  of  being 
delivered  by  execution.  (KortJiern  Turnpike  Co.  V. 
Smith,  15  Barb.  355).  In  Jackson  v.  Buel,  (9  Johns. 
298)  where  a  grantor  had  reserved  to  himself  and  as- 
signs the  right  and  privilege  of  erecting  a  mill  at  a  place 
particularly  described  in  the  deed,  and  to  occupy  and 
possess  the  premises ;  it  was  held  that  the  action  of  eject- 
ment would  lie  for  the  jiremises  so  resen'ed;  but  in  the 
later  case  of  rlackxou  v.  May,  (16  Johns.  181)  the  court 
held  that  an  action  would  not  lie  upon  the  grant  of  a 
privilege  to  erect  a  building  upon  lands,  unless  the  place 
where  it  was  to  be  erected,  or  the  quantity  of  ground 
which  was  to  be  occupied  was  especially  staied,  or  un- 
less there  had  been  an  actual  entry  and  location  under 
the  grant.  Ejectment  will  not  lie  for  the  land  covered 
by  a  party- wall.  (Brondage  v.  Warner,  2  Hill,  115). 
In  Rogers  v.  Sinsheinier,  (50  N.  Y^.  616)  the  court  of 
appeals  having  this  question  before  them,  declined  to 
pass  upon  it. 

Sec.    3.    "What  title   necessary  to   maintain   action. 

It  is  well  settled  that  the  plaintiff  can  only  recover  in 
ejectment  upon  the  strength  of  his  own  title  {Roberts  v. 
Baumgarten,  110  N.  Y.  380),  and  that  he  can  never  take 
anything  in  his  action  by  reason  only  of  defects  in  the 
title  of  the  defendant.  (Wallace  v.  Swinton,  61  N.  Y. 
188).  If  the  plaintiff  has  no  title  to  the  premises  or 
right  to  possession  of  them,  it  is  not  important  by  wdiat 
right  the  defendant  is  in  possession.  {Siceet  v.  B.,  N. 
Y.di:  P.  Ry.  Co.,  79  N.  Y.  293).  By  the  revised  statutes 
(2  Rev.  Stat.  303,  §  3)  it  was  enacted  that  no  person 
could  recover  in  ejectment,  unless  he  had  at  the  time 
of  commencing  the  action  a  valid  and  subsisting  interest 
in  the  premises  claimed,  and  a  right  to  recover  the  same, 


C  I'UAL'TICE. 

iLiul  to  recover  the  possession  thereof,  or  of  s(Mne  sliarc, 
iuterest  or  portion  thereof,  to  be  proved  or  establislied 
ou  the  ti'ial. 

Tliis  provision  of  the  revised  statutes  has  Iwen  re- 
pealed; but  it  is  believed  that  the  statement  therein 
contained  of  the  interest  which  the  plaintilf  must  have 
to  entitle  him  to  maintain  the  action,  still  represents  the 
law  upon  this  subject;  for  the  provisions  of  the  revised 
statutes  was  merely  a  statement  of  the  rule  as  it  existed 
at  common  law.  (Adams  on  Ejectment,  p.  32,  33). 
Before  the  revised  statutes,  as  now,  it  wajs  held  that  to 
enable  the  plaintiif  to  recover  he  must  have  an  im- 
mediate right  of  entry  and  possession  of  the  premises 
for  which  tlie  action  was  broujiht.  (Adams  on  Eject- 
ment, p.  33;  Hunter  v.  Trustees  of  Saudi/  Hill,  0  1 1  ill, 
407;  Pierce  v.  Tuttle,  53  Barb.  155).  It  must  a])pear 
that  the  plaintiff  has  the  le<»al  title  (Adams  on  Eject- 
ment, p.  32),  or  that  he  had  a  prior  actual  possession. 
(Bartoiu  v.  Draper,  5  Duer,  130;  People  v.  Van  Rens- 
selaer, 9  N.  Y.  291,  319).  The  action  cannot  be  main- 
tained ujjon  a  mere  equitable  right  (Peck  V.  Netcton,  46 
Barb.  173;  Rislei/  v.  Rice,  40  Hun,  585;  Hall  v.  La 
France  Fire  Enf/ine  Co.,  158  N.  Y.  570),  except  possibly 
where  a  plaintiff  having  an  e<iuitable  title  makes  all  the 
parties  connected  with  the  transaction,  including  the 
person  in  possession,  parties  defendant  {Boi/d  v.  Boijd, 
12  Misc.  119;  affd.  without  op.,  14(>  N.  Y.  403);  but 
where  the  equitable  owner  has  the  right  of  immediate 
possession,  he  may  maintain  an  action  against  a  stran- 
ger who  wrongfully  enters  upon  the  land.  (MnrpJit/  v. 
Loomis,  26  Hun,  659).  In  every  case  where  neither 
party  has  a  legal  title  to  the  premises,  a  person  showing 
the  prior  possession  is  entitled  to  hold  it  against  an 
intruder  {Hunter  v.  Star  in,  26  Hun,  529),  even  though 
such  prior  possession  would  not,  if  continued  long 
enough,  make  a  title  by  adverse  possession.  (Mission 
of  Immaculate  .Vircjin  v.  Cronin,  14  Misc.  372).  In 
every  case,  as  against  a  stranger,  actual  possession  of 
the  premises  is  pritna  facie  evidence  of  a  title  in  fee; 
and  as  against  such  a  person  it  will  always  entitle  the 
plaintiff  to  recover  in  ejectment    (/////  v.   Draper,  10 


EJECTMENT.  T 

Barb.  454 ) ,  but  constructive  possession  of  wild  lands  is 
not  such  possession  as  will  permit  tlie  plaintiff  to  re- 
cover. {Thompson  v.  Biii-Jiims,  61  N.  Y.  52).  An 
action  of  ejectment,  founded  only  upon  adverse  posses- 
sion, may  be  maintained  even  against  the  true  owner. 
(Barnes  v.  Light,  116  N.  Y.  34).  Although  the  plaintiff 
cannot  maintain  an  action  of  ejectment  simply  upon  his 
equitable  title,  yet  he  may  in  such  an  action  attack  a 
deed  under  which  the  defendant  claims  title,  both  upon 
legal  grounds,  and  upon  such  as  were  before  the  code, 
of  purely  equitable  cognizance.  {Phillips  v.  Gorham, 
17  N.  Y.  270;  tiheduui  v.  Hamilton,  4  Abb.  Ct.  App. 
Dec.  211).  The  owner  of  a  legal  title  may  maintain 
ejectment  against  the  vendee  in  possession  under  a  con- 
tract of  sale  {Risley  v.  Rice,  40  Hun,  585),  unless  the 
vendee  was  entitled  to  possession  by  the  express  provi- 
sions of  the  contract;  and  in  that  case  the  vendor  may 
bring  his  ejectment  to  recover  possession  of  the  prem- 
ises, if  the  purchaser  is  in  default.  (Sedg.  &  Wait,  on 
Title  to  Land,  §  394). 

A  mortgagee  or  his  assignee  or  other  representative, 
cannot  maintain  such  an  action,  to  recover  the  mort- 
gaged premises.  (Co.  Civ.  Proc.  §  1498).  One  who 
claims  under  a  deed  intended  only  as  security,  although 
it  is  absolute  in  form,  cannot  maintain  ejectment  for 
the  premises  described  in  the  deed.  (Berdell  v.  Berdell, 
33  Hun,  535 ;  Carr  v.  Carr,  52  N.  Y.  251 ) .  A  conditional 
title  in  the  plaintiff  is  sufficient  to  entitle  him  to  main- 
tain ejectment,  until  the  condition  is  broken.  {Olmsted 
V.  Harvey,  1  Barb.  102;  Candee  v.  Burke,  1  Hun,  546). 
Where  land  has  been  granted  upon  condition,  the  gran- 
tor may  bring  ejectment  for  breach  of  the  condition, 
without  re-entrs'  or  notice.  {Plumh  v.  Tuhhs,  41  N.  Y. 
442).  An  action  of  ejectment  cannot  be  maintained  in 
any  case  where  the  action  of  dower  may  be  maintained, 
as  prescribed  in  article  III  of  title  I  of  chapter  XIV  of 
the  code  of  civil  procedure.  (Co.  Civ.  Proc.  §  1499). 
Where  a  tenant  for  life  or  for  years,  suffers  judgment 
to  be  taken  against  him,  by  consent  or  by  default,  in  an 
acticsn  of  ejectment,  or  an  action  for  dower,  the  heir 
or  person  owning  the  reversion  or  remainder,  may,  after 


8  I'lJACTlCE. 

the  (h'tennination  of  tlu'  inirlicnlar  estate,  maintain  an 
action  of  ejectment  to  recover  the  property.  (Co,  Civ. 
Proo.  §  1080 ). 

Sec.    4.    ^Vhat  may  be  recovered  in  the  action. 

As  alreadv  lias  sutiicieutly  ai)pearf*(l,  any  real  estate 
of  wliidi  the  sherilf  can  deliver  actual  possession  may  be 
recovered  in  the  action  of  ejectment.  If  the  plaiutitf's 
title  is  subject  to  an  easeqnent,  he  can  only  have  judj;- 
ment  for  the  lands  subject  to  the  easement.  (  //o//r/-.v  v. 
ISiushcimcr^  50  N.  Y.  040).  The  code  re<iuires  that  the 
estate  of  the  plaintiif  must  be  specified  in  any  verdict, 
report,  or  decision  in  his  favor;  and  it  must  be  stated 
whether  the  estate  is  in  fee,  or  for  life,  or  for  a  term  of 
years,  stating  for  whose  life  it  is,  and  specifying  the 
duration  of  the  term,  if  the  estate  is  less  than  a  fee. 
(Co.  Civ.  Proc.  §  1519). 

If  the  right  or  title  of  the  plaintiff,  in  an  action  of 
ejectment,  expires  after  the  commencement  of  the  action, 
but  before  the  trial,  and  he  would  have  been  entitled  to 
recover,  but  for  the  expiration,  the  verdict,  report,  or 
decision  must  be  rendered  according  to  the  fact;  and  the 
plaintiff  is  entitled  to  judgment  for  his  damages  for  the 
withholding  of  the  property,  to  the  time  when  his  right 
or  title  so  expired.      (Co.  Civ.  Proc.  §  1520). 

In  an  action  to  recover  real  property,  or  the  posses- 
sion thereof,  the  })laiutiff  may  demand  in  his  complaint, 
and.  in  a  proper  case  recover,  damages  for  withholding 
the  proi)erty.      (Co.  Civ.  Proc.  §  141)()). 

Those  damages  include  the  rents  and  profits  or  the 
value  of  the  use  and  occupation  of  the  proi^erty,  where 
either  can  legally  be  recovered  by  the  plaintiff.  (Co. 
Civ.  Proc.  §  1497). 

Formerly  it  was  held  that  the  value  of  the  rents  and 
profits  was  not  a  part  of  the  damages  for  witliholding 
the  property  (Lamed  v.  Hudson,  57  N.  Y.  151 )  ;  luit  now 
by  express  provision  of  statute  the  rents  and  profits,  or 
the  value  of  the  use  and  occupation  are  made  a  part  of 
the  da-mages  which  may  be  recoverwl  for  withholding 
the  premises.  {De Lisle  v.  Hunt,  36  Hun,  620).  Un- 
der these  sections  of  the  code,  the  plaintiff  is  entitled  to 


EJECTMENT.  9 

recover,  under  the  general  allegation,  damages  arising 
from  the  defendant's  continuing  to  withhold  the  real 
property  after  the  bringing  of  the  action.  {('hisoii  v. 
BaJdiri'n,  129  N.  Y.  183). 

In  an  action  of  ejectment,  the  plaintiff,  where  he  re- 
covers judgment  for  the  property,  or  possession  of  the 
property,  is  entitled  to  recover,  as  damages,  the  rents 
and  protits,  or  the  value  of  the  use  and  occupation,  of 
the  real  ])roperty  recovered,  for  a  term  not  exceeding  six 
years;  but  the  damages  shall  not  include  the  value  of 
the  use  of  any  improvements  made  by  the  defendant,  or 
those  under  whom  he  claims.  Where  pcrumnent  im- 
provements have  been  made,  in  good  faith,  by  the  de- 
fendant, or  those  under  whom  he  claims,  while  holding, 
under  color  of  title,  adversely  to  the  plaintiff,  the  value 
thereof  must  be  allowed  to  the  defendant,  in  reduction 
of  the  damages  of  the  plaintiff,  but  not  l)eyond  the 
amount  of  those  damages.      (Co.  Civ.  Proc.  §  1531). 

In  calculating  the  mesne  profits,  the  defendant  is  en- 
titled to  have  the  value  of  the  permanent  improvements 
which  he  has  nmde  upon  the  premises  set  off  against 
anything  which  he  may  have  received  {WnUace  v.  Ber- 
dell,  101  N.  Y.  13,  15)  ;  but  such  an  allowance  will  be 
made  to  the  defendant  only  Avhere  it  appears  that  he  was 
a  bona  fide  occupant  of  the  premises  without  knowledge 
of  the  plaintiff's  right;  and  he  cannot  be  allowed  them, 
if  he  had  acted  in  bad  faith,  or  with  the  knowledge  of 
the  actual  right  of  the  owner.  (Wood  v.  Wood,  83  N. 
Y.  575).  The  "term  not  exceeding  six  years,"  men- 
tioned in  section  1531  of  the  code,  means  six  years  im- 
mediately prior  to  the  commencemont  of  the  action — not 
six  years  prior  to  the  trial  of  the  action.  (Willis  v. 
McKinnon,  79  App.  Div.  249;  affd.,  178  N.  Y.  451). 


10  PRACTICE. 

ARTICLE  11. 

PARTIES    TO    THE   ACTION. 
SECTION. 

1.  Who  may  be   plainlills. 

■_'.   Wlio  may  be  joined  :is  ilolendants. 

li.  Change  of  parties. 

Sec.    1.    Wlio  may  be  plaintifiFs. 

This  subject  will  he  fouml  siiflfioiontly  discussed  in 
volume  1,  at  pai»es  1(10  ct  srq.  In  actious  to  euforce  an 
escheat  or  to  recover  land  forfeited  by  treason,  the  peo- 
ple are  the  proper  parties  plaiutiff.  (Co.  Civ.  Proc.  § 
1977).  Where  the  action  is  brouj^ht  by  a  grant<'e  in 
the  name  of  his  grantor,  the  plaintiff  must  stand  on  the 
title  of  his  grantor;  and  if  that  title  is  not  valid  the 
action  cannot  be  maintained.  {Vliainhcrlaui  v.  Taylor, 
105  N.  Y.  185).  A  receiver  in  supplementary  proceed- 
ings has  the  legal  title  to  the  prop(M*ty  of  the  judgment 
debtor  (Co.  Civ.  Proc.  §  2468)  ;  and  he  may  properly 
bring  an  action  of  ejectment  to  recover  land,  the  title  to 
which  was  in  the  judgment  debtor  at  the  time  of  his 
appointment.  (  Wing  v.  Disse,  15  Hun,  lUO;  iSaijIcs  v. 
Naylor,  5  N.  Y.  St.  Rep.  816).  A  trustee  who  is  entitled 
to  the  possession  of  land,  may  recover  it  from  his  ben(^ 
ficiarj'  by  an  action  of  ejectment  against  him.  {Matter 
of  Brewer,  43  Hun,  597).  Ejectment  may  be  main- 
tained by  a  landlord  against  a  tenant  at  will  or  by  suffer- 
ance who  holds  over  after  notice  to  quit.  ( Real  Prop- 
erty Law,  §  198). 

Sec.    2.    Wlio  may  be  joined  as  defendants. 

The  statutory  rules  upon  this  subject  are  found  in 
volume  I,  at  pages  168  et  seq.,  where  the  sections  of  the 
code  are  quoted ;  and  it  is  not  necessar\'  to  restate  them 
here. 

\Mienever  anyone  enters  upon  and  takes  permanent 
possession  of  the  lands  of  another,  claiming  title  thereto, 
whether  the  controversy  arises  over  a  disputed  boundary 
or  otherwise,  that  is  an  unlawful  entry  and  ouster,  and 
such  a  person  is  a  proper  defendant  in  an  action  of  eject- 


EJECTMENT.  11 

ment.  [Lcppirll  v.  Klcin.schutidl,  112  N.  Y.  3G4). 
Where  infants  were  made  defeudauts  because  they  had 
inherited  the  title  of  their  father,  and  it  appeared  upon 
the  trial  that  they  disclaimed  any  right  in  the  land,  it 
was  held  that  it  was  proper  to  dismiss  the  complaint  as 
against  them.  {l>ii,ssoit  v.  CitmmUigs,  106  N.  Y.  56). 
The  occupant  must,  in  all  cases,  be  made  a  party  de- 
fendant, as  we  have  seen;  but  the  only  effect  of  not  join- 
ing other  parties  as  defendants,  is  simply  to  leave  the 
questions  raised  in  the  action  open  to  controversy  as 
against  them,  in  case  they  subsequently  assert  title,  or 
adverse  rights.  [Bradt  v.  Church,  110  N.  Y.  537). 
Section  1503  of  the  code  does  not  make  it  necessary  to 
join  as  defendants  parties  who  are  not  occupants  (Id.)  ; 
but  the  court  may,  in  its  discretion,  direct  such  persons 
to  be  brought  in  under  section  452  of  the  code  of  civil 
procedure. 

Sec.    3.    Change  of  parties. 

The  rules  for  the  substitution  on  the  death  of  parties 
plaintiff  or  defendant,  are  found  in  volume  I  at  pages 
825  ct  seq. 

Where  there  are  two  or  more  defendants,  and  it  is 
alleged,  in  the  answer  of  either  of  them,  that  he  occupies 
in  severalty,  or  that  he  and  one  or  more  of  his  co-defend- 
ants occupy  jointly,  one  or  more  distinct  parcels,  and 
that  one  or  more  other  defendants  possess  other  parcels, 
in  severalty  or  jointly,  the  court  may,  in  its  discretion, 
upon  the  application  of  the  plaintiff,  and  upon  such 
terms  as  justice  requires,  direct  that  the  action  be 
divided  into  as  many  actions  as  are  necessary.  If  the 
action  is  not  so  divided,  and  it  appears,  upon  the  trial, 
that  the  allegation  is  true,  the  plaintiff  must,  before  the 
evidence  is  closed,  elect  against  which  defendant  or  de- 
fendants he  will  proceed;  and  a  judgment  dismissing 
the  complaint  must  thereupon  be  rendered,  in  favor  of 
the  other  defendants.       (Co.  Tiv.  Proc.  §  1516). 

It  is  stated  that  the  object  of  this  section  was  to  afford 
the  same  power  to  sever  the  action  as  on  demurrer  in 
other  cases.  ( Throop's  note  to  §  1516  ) .  Section  1516 
authorizes  the  division  of  the  action  only  on  the  plain- 


12  i'UA(  Ti«'i:. 

tiff's  ai)i>li(jili(m  ;  the  (Icfcudanls  arc  not  aiitliorizoil  to 
ask  for  it.  {Uvuhvs.sij  v.  Pauhcu,  VI  Misc.  ;')S4 ;  afid. 
on  other  points,  147  N.  Y.  255). 

Section  ir)l()  does  not  aj^jdy  to  a  case,  wliere  two  or 
more  defendants  occupy  dillerent  apartments  in  a  build- 
ing. In  such  a  case,  in  an  action  to  recover  the  buikling 
and  its  curtihige,  tiie  |>hiin1ilT  is  entith'd  to  judgment 
jointly  against  all  (he  defendants  who  are  liable  to  him. 
(Co.  Civ.  Proc.  §  1517). 

The  rule  laid  down  by  this  section  was  the  same  as 
that  established  in  Pcarce  v.  Ferris.      (10  N.  Y.  280). 

Section  1516  of  the  code  does  not  apply  to  a  case, 
where  one  or  more  defendants,  answering  as  therein 
prescribed,  hold  under  another  defendant,  and  the  plain- 
tiff elects  to  proceed  against  the  latter,  subject  to  the 
rights  and  interests  of  the  former.  In  such  a  case,  the 
proceedings  against  the  defendant  so  answering  must  be 
stayed  until  final  judgment ;  and  if  the  plaintiff  recovers 
.final  judgment  against  the  defendant,  under  whom  they 
hold,  the  judgment  operates  as  a  transfer  to  the  plaintiff 
of  that  defendant's  right,  title,  and  interest,  and  the 
costs  of  the  defendant  or  defendants  so  answering  are 
in  the  discretion  of  the  court.      (Co.  Civ.  Proc.  §  1518). 


ARTICLE  III. 

PLEADINGS   AND   PROCEEDINGS. 

SECTION. 

1.  The  plaintiff's  pleadings. 

2.  The  defendant's  pleadings. 

3.  Proceedings  in  the  action. 

4.  Effect  of  the  judgment. 

Sec.    1.    The  plaintifip's  pleadings. 

Jt  is  necessary  in  these  cases  to  file  a  notice  of  the 
pendency  of  the  action.  (Vol.  1,  p.  239).  The  com- 
plaint should  also  be  filed  at  the  same  time. 

The  complaint  must  describe  the  property  claimed 
with  common  certainty,  by  setting  forth  the  name  of  the 
township  or  tract,  and  the  number  of  the  lot,  if  there  is 
any,  or  in  some  other  appropriate  manner;  so  that,  from 


EJECTMENT.  13 

the  description,  possession  of  the  property  claimed  may 
be  delivered,  where  the  plaintiff  is  entitled  thereto. 
(Co.  Civ.  Proc.  §  1511). 

The  complaint  must  show  that  the  plaintiff  is  out  of 
possession,  and  that  the  possession  is  unlawfully  with- 
held from  him  {Taylor  v.  Crane,  15  How.  Pr.  358;  Al- 
vord  V.  Hetsel,  2  How.  Pr.  N.  S.  88),  and  that  he  has  a 
right  to  possession  in  prc^cntl.  {Trull  v.  Granger,  8 
N.  Y.  115).  It  must  also  appear  by  the  complaint  that 
the  defendant  is  in  possession.  {Redfield  v.  Utica  & 
Syr.  E.  R.  (Jo.,  25  Barb.  54 ;  Banyer  v.  Empie,  5  Hill, 
48).  Where  the  relation  of  landlord  and  tenant  does 
not  exist,  a  notice  to  quit  or  a  demand  is  not  necessary. 
(Eysamen  v.  Eymmen,  24  Hun,  430;  TFoorf  v.  Wood, 
83  N.  Y.  575).  It  is  not  sufficient  for  plaintiff  to  allege 
that  he  is  entitled  to  the  possession  of  the  lands,  but 
he  must  state  the  character  of  his  estate,  as  in  fee,  or 
for  life,  or  for  years.  {Austin  v.  Schlnyter,  7  Hun, 
275). 

It  is  not  necessary  that  the  estate  of  the  plaintiff 
should  be  precisely  or  accurately  stated.  An  allegation 
that  the  plaintiff  was  the  owner  in  fee  will  warrant  a 
recovery  as  a  mortgagee  in  possession.  {Chapman  v. 
D,,  L.  &  W.  R.  R.  Co.,  3  Lans.  261).  If  an  undivided 
interest  is  claimed,  it  is  necessary  that  the  plaintiff 
should  state  precisely  what  it  is.  Where  it  was  stated 
in  the  complaint  that  the  plaintiff  claimed  an  undivided 
five-eighths  and  the  interest  shown  was  but  an  undivided 
three-eighths  in  two  plaintiffs,  it  was  held  that  without 
an  amendment  that  fact  Avould  be  fatal  to  the  action. 
{Cook  V.  Wardens  of  m.  Paul's  Ch.,  5  Hun,  293). 
So  where  the  plaintiff  claims  the  entire  premises, 
he  cannot,  without  amending  his  complaint,  have 
judgment  for  an  undivided  interest  as  tenant  in  com- 
mon {Smith  v.  Lour/,  12  Abb.  N.  C.  113)  ;  but  a  defect 
in  the  statement  of  the  interest  of  the  plaintiff  is  amend- 
able either  beforfe  or  after  verdict.  {Cook  v.  Wardens 
of  St.  Paul's  Ch.,  supra;  Smith  v.  Long,  supra).  Where 
an  action  was  brought  by  one  joint  tenant  or  tenant  in 
common  against  another,  it  is  provided  by  the  code  that 
an  actual  ouster  must  be  shown  (Co.  Civ.  Proc.  §  1515) ; 


14  I'KACTICE. 

aucl  siuh  au  ouster  iiiusl  be  allej;ed  in  the  eomplaiiit. 
A  elaiiii  of  title  and  possession  sot  up  in  the  answer  is 
sutiicieut  to  eonsiitue  an  ouster  within  th(^  meaninu  of 
this  section  of  the  code.  [Peterson  v.  DcBuun,  30  App. 
Div.  259).  Where  the  action  was  brought  by  a  grantor 
against  a  grantee  for  a  condition  broken,  the  facts  show- 
ing the  breach  of  the  condition  must  be  alleged. 
{Mayor,  etc.,  v.  Smith,  64  How.  Pr.  89).  Formerly,  if 
the  plaintiff  sought  to  recover  rents  and  profits,  his  com- 
plaint had  to  allege  specifically  that  the  defendant  had 
received  them,  stating  the  amount  of  them,  and  demand 
a  recovery  in  respect  of  them ;  but  the  code  of  civil 
procedure  (§§  1490,  1497)  has  changed  this,  and  now, 
under  the  general  claim  for  damages  for  withholding 
possession,  rents  and  profits  from  the  time  of  the  com- 
mencement of  the  action  may  be  recovered.  {Clason 
V.  BaJdir'in,  129  N.  Y.  183).  It  would  seem,  however, 
that  the  ancient  rule  still  governs  as  to  rents  and  profits 
accruing  prior  to  the  commencement  of  the  action,  and 
that  thei-e  must  be  a  special  allegation  and  demand  as 
to  those,  in  order  to  recover  them.  (Id,  at  p.  189,  .vem- 
hle).  If  a  counterclaim  is  set  up  by  the  defendant,  the 
necessity  of  a  reply  is  governed  by  the  rule  in  other  civil 
actions,  which  will  be  found  at  volume  I,  pages  456 
et  seq. 

Sec.    2.    The  defendant's  pleadings. 

A  demurrer  lies  for  a  defect  in  the  complaint  in  this 
action,  as  in  other  actions.  (Vol.  I,  p.  462  et  seq.). 
Under  a  general  denial,  the  defendant  may  disprove  any- 
thing which  it  is  necessary  for  the  plaintiff  to  prove,  to 
entitle  him  to  maintain  the  action.  (Vol.  I,  p.  432). 
Within  this  rule  it  was  held  that  under  a  general  denial, 
the  defendant  might  show  that  the  plaintiff  was  estopped 
to  assert  his  right  of  possession.  (Creque  v.  Sears,  17 
Hun,  123,  125).  The  defendant  may  show  legal  title 
out  of  the  plaintiff,  or  in  a  third  person,  without  con- 
necting himself  with  it.  (Bloom  v.  BurdicJc,  1  Hill, 
130 ) .  This  he  may  show  under  a  general  denial.  (Ray- 
nor  V.  Timerson,  46  Barb.  518).  This  rule,  however, 
does  not  apply  where  the  defendant  is  a  mere  intruder 


EJECTMENT.  15 

(Jackson  v.  Harder,  4  Johns.  202)  ;  or  wliere  he  entered 
by  permission  of  the  plaintiff.  (Jackson  v.  Schauhcr, 
2  Wend.  257).  In  such  case,  the  fact  tliat  another  per- 
son has  title  is  not  material,  unless  the  defendant  in 
some  way  connects  himself  with  it.  So,  also,  where  the 
defendant  shows  an  outstanding  equitable  title  in  some 
third  person,  but  does  not  connect  himself  with  it,  no 
valid  defense  is  made  out.  (^^'ing  v.  Dc  La  Rionda,  131 
N.  Y.  422).  Nor  can  the  defendant  set  up  title  in  the 
state  by  escheat  to  defeat  the  plaintiff's  title.  (Croner 
V.  Cowdrey,  139  N.  Y.  471).  If  the  defendant  claims 
possession  to  premises  by  adverse  possession,  or  if  he 
seeks  to  defend  upon  the  ground  that  the  deed  under 
which  the  plaintiff'  claims  is  void  for  champerty  or  for 
any  other  reason  so  that  the  defendant  is  equitably  en- 
titled to  the  premises,  these  facts  must  be  set  up  in  the 
answer.  (Ford  v.  Sampson,  30  Barb.  183;  Hansce  v. 
Mead,  27  Hun,  162).  In  the  case  of  Porter  v.  McGrath 
(41  N.  Y.  Super.  Ct.  Rep.  84),  it  was  held  by  Monnell, 
C.  J.,  that  if  the  defendant  claimed  under  adverse  title, 
he  was  estopped  to  deny  that  he  was  in  the  occupation 
of  the  premises;  but  that  holding  was  not  necessary  to 
the  decision  of  the  case,  and  it  may  be  doubted  whether 
it  is  correct,  especially,  in  that  case,  where  the  defend- 
ant pleaded  a  general  denial.  A  denial  of  the  plaintiff's 
allegation  that  he  is  the  owner  of  the  premises  is  suffi- 
cient to  raise  the  question  that  he  has  no  title;  there  is 
no  necessity  of  an  affirmative  allegation  that  his  title 
is  invalid.  (Terrell  v.  Wheeler,  12  N.  Y.  St.  Rep.  597). 
If  the  defendant  is  in  possession  as  mortgagee  or  as  as- 
signee of  the  mortgagee,  that  constitutes  a  good  defense 
to  the  action  (St.  John  v.  Bumpstead,  17  Barb.  100)  ; 
but  that  is  not  the  case  where  the  mortgagee  acquired 
possession  by  force  or  fraud  against  the  will  or  consent 
of  the  rightful  owner,  and  without  lawful  authority. 
The  possession  requisite  for  such  a  defense  must  have 
about  it  at  least  some  basis  of  right  as  against  the  one 
who  is  evicted.  (Hoivell  v.  Leavitt,  95  N.  Y.  617,  621). 
Anything  which  shows  that  the  plaintiff  is  not  en- 
titled to  the  immediate  possession  of  the  property  is  a 
good  defense  to  the  action  of  ejectment.       (Hunter  v. 


IG  PlLiCTICE. 

Trustees  of  Saiidij  Hill.  (I  Hill,  407).  Tlio  defendant 
may  set  up  as  a  defense  aiivtliiiii;  w  liich  would  equitably 
entitle  him  to  retain  posvsession  ;  as  that  he  is  ('(juitably 
tile  owner  of  tlie  premises;  or  tliat  he  is  entitled  to  a 
detd  of  them;  or  that  (lie  premises  were  intended  to  be 
conveyed  to  him,  but  were  omitted  from  the  deed  by 
mistalce.  {Crari/  v.  Hood  man,  12  N.  Y.  litJG;  Hoppough 
V.  Struhle,  00  X.  Y.  430;  Glacken  v.  Brown,  39  Hun, 
294).  Where  sueh  a  defense  is  interposed,  the  defend- 
ant need  not  ask  for  atHnnative  relief  {Hoppough  v. 
Struhle,  supra)  ;  but  if  he  does,  the  answer  must  set  up 
everything"  whieh  would  entitle  him  to  relief,  if  he  had 
brought  an  action  for  it.  {Deiccg  v.  Hoag,  15  Barb. 
365;  Risley  v.  Rice,  40  Hun,  585).  Of  course,  the  plain- 
tiff must  be  allowed  to  put  in  evidence  any  facts  he  can 
show,  to  meet  such  an  equitable  defense.  (Shcehan  V. 
BamUton,  2  Keyes,  304).  The  acquisition  of  title  by 
the  defendant,  either  by  condemnation  proceedings  or 
voluntarily,  pending  the  action,  constitutes  a  defense. 
{Judge  V.  N.  Y.  C.  d  H.  R.  R.  R.  Co.,  56  Hun,  60;  Archi- 
bald V.  ^\  Y.  C.  (£  H.  R.  R.  R.  Co.,  1  App.  Div.  251;  affd. 
on  other  grounds,  157  N.  Y.  574). 

Sec.    3.    Proceedings  in  the  action. 

Subdivision  1. — Proof  of  Authority  to  Bring  Action. 

A  defendant,  in  an  action  to  recover  real  property  or 
the  possession  thereof,  may,  at  any  time  before  answ'er- 
ing,  upon  an  affidavit  that  evidence  of  the  authority  of 
the  plaintiff's  attorney  to  commence  the  action  has  not 
been  served  upon  him,  apply,  upon  notice,  to  the  court 
or  judge  thereof,  for  an  order  directing  the  attorney  to 
produce  such  evidence.      (Co.  Civ.  Proc.  §  1512). 

Upon  such  an  application,  the  court  or  judge  must,  in 
a  proper  case,  make  an  order,  requiring  the  plaintiff's 
attorney  to  produce,  as  directed  therein,  evidence  of  his 
authority  to  commence  the  action,  and  staying  all  pro- 
ceedings therein,  on  the  part  of  the  plaintiff,  until  the 
evidence  is  produced.      (Co.  Civ.  Proc.  §  1513). 

Before  the  enactment  of  the  code  of  civil  procedure,  it 
was  held  that  even  in  actions  of  ejectment,  the  court  had 


EJECTMENT.  It 

discretion  wliethor  or  not  to  require  the  production  of 
the  authority  of  the  attorney  to  bring  the  action 
{Stcicart  V.  ISfeivart,,  50  llow.  Pr.  256)  ;  but  the  provi- 
sions of  section  1513  seem  to  make  it  obligator^'  upon 
the  court  to  require  the  production  of  the  authority  of 
the  plaintiff's  attorney  in  all  cases  where  the  proper 
proof  is  made  by  the  defendant.  The  order  should  re- 
(juire  the  authority  to  be  produced  to  the  officer  who 
urants  the  order,  and  it  should  state  the  place  and  time 
where  the  production  is  to  be  made.  If  it  is  defective 
in  these  respects,  it  may  be  disregarded.  [Turner  v. 
Davis,  2  Den.  187). 

Any  written  request  of  the  plaintiff  or  his  agent  to  the 
plaintiff's  attorney,  to  commence  the  action,  or  any 
written  recognition  of  his  authority  so  to  do,  verified  by 
the  affidavit  of  the  attorney,  or  any  other  competent  wit- 
ness, is  sufficient  presumptive  evidence  of  such  author- 
ity.     (Co.  Civ.  Proc.  §  1514).       • 

A  retainer  by  an  agent  is  not  enough,  unless  the  agent 
had  authority  from  the  principal  to  direct  the  commence- 
ment of  the  suit.  The  fact  that  he  is  a  general  agent 
having  power  to  see  to  the  property  and  business,  and  to 
carry  on  and  work  the  land,  does  not  give  him  the  power 
to  authorize  the  bringing  of  the  action  (Howard  v. 
Howard,  11  How.  Pr.  80)  ;  but  if  it  appears  on  the  mo- 
tion that  the  plaintiff",  after  the  bringing  of  the  action, 
recognized  the  authority  of  the  attorneys  and  requested 
them  to  continue  it,  that  would  be  a  sufficient  authority. 
(Id).  Where  the  authority  of  the  plaintiff's  attorney 
has  been  produced  in  obedience  to  an  order,  and  has 
been  held  sufficient  by  the  court,  a  second  motion  to  re- 
quire the  production  of  authority  upon  the  ground  that 
the  authority  formerly  produced  was  not  sufficient,  will 
be  denied.  The  adjudication  of  the  court  upon  the  first 
motion  that  the  authority  produced  was  sufficient  can 
only  be  reviewed  upon  appeal.  {Carpenter  v.  Alien, 
45  N.  Y.  Super.  Ct.  Kep.  322).  The  verification  of  a 
complaint  by  the  plaintiff  is  a  sufficient  "  written  recog- 
nition "  of  the  attorney's  authority,  within  the  meaning 
of  the  section.      ( Graham  v.  Andreics,  11  Misc.  649 ) . 


la  I'liATTU'E. 

8L1!1)IVISI().\    '2.  —  PltoVISIOXAL   REMEDIES. 

The  court  iu  which  the  action  is  hroiip;ht,  undoubtedly 
has  the  power  to  appoint  a  receiver  of  the  property  and 
of  the  rents  and  protits.  {People  v.  Mayor,  etc.,  10  Abb. 
Tr.  Ill;  Irvlund  v.  Mchols,  1  Swe.  208).  But  the  ap- 
pointment of  a  receiver  upon  a  motion  of  the  plaintiff, 
amounts  practically  to  the  dispossession  of  the  defend- 
ant, and  to  jiiving  to  the  plaintiff,  pending-  the  action, 
the  relief  which  he  usually  can  only  obtain  after  judg- 
ment in  his  favor,  and  for  that  reason  the  general  rule 
is  that  a  receiver  will  never  be  appointed  in  actions  of 
ejectment  before  judgment.  {(Juruseij  v.  Powers,  9 
Hun,  78;  Burdell  v.  Burdell,  54  How.  Pr.  91).  It  is 
probable,  however,  that  a  receiver  would  be  appointed, 
if  e<iuitable  grounds  were  made  to  appear  entitling  the 
plaintiff  to  the  rents  and  profits  as  such,  or  showing  that 
their  sequestration  was  necessary  to  his  protection. 
(People  V.  Mayor,  etc.,  10  Abb.  Pr.  Ill;  see,  also,  Rogers 
V.  Marshall,  6  Abb.  Pr.  N.  S.  457;  Mitchell  V.  Barnes, 
22  Hun,  194).  When  a  receiver  is  appointed,  the  man- 
ner in  which  the  appointment  is  to  be  procured,  and  the 
security  to  be  given  by  him  is  the  same  as  in  any  other 
action.  (Vol.  1,  pp.  697,  et  scq.).  As  to  the  injunction 
restraining  the  prosecution  of  the  action,  see  volume  I, 
pages  558,  et  seq.  As  to  when  an  injunction  will  be 
granted  to  stay  waste,  see  volume  I,  page  578.  An  in- 
junction will  be  granted  after  judgment,  w^hen  it  is 
shown  that  the  plaintiff  is  making  an  oppressive  use  of 
the  judgment,  or  that  h(^  has  ceased  to  own  the  premises, 
or  that  the  defendant  has  subsequent  to  the  recovery  of 
the  judgment,  acquired  some  interest  or  equity  in  the 
property  which  should  be  protected,  or  that  the  judg- 
ment was  obtained  by  fraud  or  collusion.  (Knox  V. 
McDonald,  25  Hun,  2G8). 

Subdivision  3. — Survey. 

If  the  court,  in  which  an  action  relating  to  real  prop- 
erty is  pending,  is  satisfied  that  a  survey  of  any  of  the 
property,  in  the  possession  of  either  party,  or  of  a 
boundary  line  between  the  parties,  or  between  the  prop- 


EJECTMENT.  19 

ert.v  of  either  of  them,  and  of  another  person,  is  neces- 
sary or  expedient,  to  enable  either  party  to  prepare  a 
pleading,  or  prepare  for  trial,  or  for  any  other  proceed- 
ing in  the  action,  it  may,  upon  the  application  of  either 
party,  upon  notice  to  the  party  in  possession,  make  an 
order,  granting  to  the  applicant  leave  to  enter  upon  that 
party's  property,  to  make  such  a  survey.  ( Co.  Civ. 
Proc.  §  1682).  There  must  be  an  affidavit  of  the  party 
showing  that  he  has  not  the  information  it  is  desired  to 
secure  by  the  survey.  ( i^uftcr  v.  Citij  of  N.  Y.,  89  App. 
Div.  494). 

An  order  made  as  prescribed  in  section  1682  must 
specif}',  hj  a  description  as  definite  as  may  be,  the  prop- 
erty or  boundary'  line  to  be  surveyed,  and  the  real  prop- 
erty of  the  adverse  party,  upon  which  it  is  necessary  to 
enter  for  that  purpose.  A  copy  thereof  must  be  served 
on  the  owner  or  occupant  of  that  property,  before  entry 
thereupon.      (Co.  Civ.  Proc.  §  1683). 

After  serving  a  copy  of  the  order,  as  prescribed  in  the 
section  1683,  the  party  obtaining  it,  his  necessary  sur- 
veyors, sers'ants  and  agents,  may  enter,  for  the  purpose 
of  making  the  survey,  upon  the  real  property  described 
in  the  order,  and  may  there  make  the  surv^ey ;  but  each 
person  so  entering  is  responsible  for  any  unnecessary 
injury  done  by  him;  and  the  party  procuring  the  order, 
is  responsible  for  such  an  injury,  done  by  any  person  so 
entering.      (Co.  Civ.  Proc.  §  1684). 

Subdivision  4. — Other  Proceedings  Before  Judgment. 

The  proceedings  before  judgment  in  this  action  are 
the  same  as  in  any  other  civil  action  under  the  code  of 
civil  procedure,  and  will  be  found  treated  of  in  their 
proper  places  in  the  former  chapters  of  this  work.  The 
trial  must  be  by  jury.  (Vol.  II,  p.  212).  If  an  equita- 
ble defense  is  interposed  to  the  cause  of  action,  the  man- 
ner in  which  it  must  be  tried  will  be  found  discussed  in 
volume  II,  at  pages  222  and  223. 


20  practice. 

Subdivision  5. — I-'okm  of  Verdict. 

A  verdict,  rcixn-t,  or  decision,  in  favor  of  the  plaintiff, 
in  an  action  of  ejcctnient,  must  specify  the  estate  of  the 
plaintiff  in  the  property  recovered,  whether  it  is  in  fee, 
or  for  life,  or  for  a  term  of  years,  stating  for  whose  life 
it  is,  or  specifying  the  duration  of  the  term,  if  the  estate 
is  less  than  a  fee.      (Co.  Civ.  Proc.  §  1519). 

If  the  right  or  title  of  the  plaintiff,  in  an  action  of 
ejectment,  expires  after  the  commen<*emeut  of  the  action, 
but  before  the  trjal,  and  he  would  have  been  entitled 
to  recover,  but  for  the  expiration,  the  verdict,  report, 
or  decision  must  be  rendered  according  to  the  fact;  and 
the  plaintiff  is  entitled  to  judgment  for  his  damages  for 
the  withholding  of  the  property,  to  the  time  when  his 
right  or  title  so  expired.      (Co.  Civ.  Proc.  §  1520). 

The  title  of  the  plaintiff  referred  to  in  this  last  sec- 
tion, has  reference  to  the  estate  or  interest  in  the  prem- 
ises, which  for  the  time  being  is  in  the  possession  of,  or 
represented  by,  the  plaintiff,  and  not  of  the  person  who 
is  at  the  time  the  owner  of  the  estate.  It  means  the  title 
up^n  which  the  plaintiff  seeks  to  recover.  If  the  estate 
expires,  i.  e.,  if  it  ceases  or  comes  to  an  end,  the  judg- 
ment for  the  possession  of  the  premises  will  not  be  given 
against  the  defendant;  but  if  the  estate  continues  to 
exist,  although  in  other  hands  than  the  plaintiff,  judg- 
ment should  be  rendered  against  the  defendant  for  the 
possession  of  the  premises;  and  the  plaintitf,  if  he  re- 
covers them,  will  do  so  as  trustee  of  him,  who,  since  the 
commencement  of  the  action,  has  become  the  real  party 
in  interest.  (Tan  Rensselaer  v.  Oiccn,  48  Barb.  Gl). 
The  rule  applies  to  every  case  where  the  title  of  the 
plaintiff  has  ceased  to  exist  before  the  trial.  {Lang  v. 
Wilhraha)n,  2  Duer,  171).  The  defendant  may  avail 
himself  of  the  provisions  of  this  section  without  filing 
a  supplemental  answer  to  set  up  the  fact.  (Id.). 
Where  the  title  of  the  plaintiff  has  expired  after  judg- 
ment, and  before  a  decision  of  the  appeal,  and  the  judg- 
ment is  afflrmed,  the  issue  of  execution  for  the  posses- 
sion of  the  premises  will  be  stayed.      {Olendorf  v.  Cook, 


EJECTMENT.  21 

1  Lans.  37).     See,  also,  as  to  the  form  of  verdict,  volume 
II,  pp.  377-378. 

Subdivision  6. — Judgment. 

Rules  for  entering  judgment  after  default  will  be 
found  at  volume  II,  at  pages  714,  et  scq.  The  provisions 
of  the  judgment  should  follow  the  verdict,  or  the  con- 
clusions of  law.  It  should  adjudge  what  estate  the 
plaintiff  has  in  the  premises;  and  it  should  direct  that 
he  recover  possession  of  the  premises  and  whatever  sum 
has  been  awarded  as  damages  and  as  costs.  The  prem- 
ises should  be  described  in  the  judgment  so  that  the 
sheriff  can  identify  them  to  deliver  possession.  If  the 
premises  are  subject  to  an  easement,  the  judgment 
should  award  possession  to  the  plaintiff  subject  to  the 
easement.  [Rcfonncd  Church  v.  Hchoolcrafty  65  N.  Y. 
131;  Rogers  v.  HinsJiclmer,  50  N.  Y.  646).  The  nature 
of  the  plaintiff's  interest  should  always  be  specified  in 
the  judgment.  If  the  plaintiff's  title  has  expired,  the 
judgment  should  be  rendered  simply  for  the  danmges 
to  which  the  plaintiff  is  entitled,  for  withholding  the 
property  to  the  time  when  his  right  or  title  so  expired. 
(Co.  Civ.  Proc.  §  1520).  As  to  the  costs,  see  that  sub- 
ject treated  of  in  volume  II.  As  to  execution  for  de- 
livery of  the  premises,  see  volume  II,  at  pages  963, 
et  seq.;  and  the  regulations  as  to  the  form  of  the  execu- 
tion for  possession  of  real  property  are  found  in  volume 
II,  at  page  987. 

Subdivision  7. — New  Trial. 

This  subject  is  fully  treated  in  volume  II,  at  pages 
515,  et  seq. 

Upon  a  new  trial,  granted  as  prescribed  in  section 
1525  of  the  code,  the  defendant  may  show  any  matter  in 
defence,  which  he  might  show  to  entitle  him  to  recover 
the  possession  of  the  property,  if  he  was  plaintiff  in 
the  action.      (Co.  Civ.  Proc.  §  1530). 


22  I'll  A(  "TICK. 

Srr.nivisioN  8. — Opening  Default. 

A  final  jiulj;im'iU  f(>r  the  plaintiff,  rendered  in  an 
action  of  ejectment,  otherwise  than  upon  the  trial  of  an 
isvsue  of  fact,  is,  after  the  expiration  of  three  years  from 
the  filing  of  the  judgment-roll,  conclusive  upon  the  de- 
fendant, and  every  person  claiming  from,  through,  or 
under  him,  by  title  accruing,  either  after  the  judgment- 
roll  is  filed,  or  after  a  notice  of  the  pendency  of  the 
action  is  filed  in  the  proper  county  clerk's  office,  as  pre- 
scribed in  sections  KJ70,  ft  sc(j.  of  the  code.  But 
within  five  yeais  after  a  judgment-roll  in  an  action 
of  ejectment  is  filed,  the  court,  upon  the  application  of 
the  defendant,  his  heir,  devisee,  or  assignee,  and  upon 
payment  of  all  costs  and  damages  awarded  to  the  plain- 
titt',  must  make  an  order  vacating  the  judgment,  and 
granting  a  new  trial,  if  it  is  satisfied  that  justice  will 
be  thereby  ])romoted,  and  the  rights  of  the  parties  more 
satisfactorily  ascertained  and  established;  but  not  other- 
wise.     (Co.  Civ.  Proc.  §  1526). 

The  revised  statutes  i)rovided  only  for  opening  judg- 
ments taken  by  default;  but  the  section  above  quoted 
uses  instead  of  the  words  "  taken  by  default,"  the  words 
"  rendered  otlK^rwise  than  upon  the  trial  of  an  issue  of 
fact."  Under  the  n  vised  statutes  it  had  been  held  that 
the  authority  to  open  judgments  taken  by  default  did 
not  refer  to  judgments  on  a  submission  without  action 
[Lull (J  v.  Ropkc,  1  Duer,  701)  ;  or  to  judgments  taken 
after  demurrer  {Christie  V.  Bloomingdale,  18  How.  Pr. 
12);  but  the  section  now  gives  the  power  to  open  a 
judgment  in  both  these  classes  of  cases.  The  section 
does  not  apply  where  the  action  is  founded  upon  an 
allegation  of  rent  in  iirrear;  or  in  a  case  where  the  sum- 
mons is  served  by  publication.  (Co.  Civ.  Proc.  §  1528). 
It  has  been  held,  however,  that  a  judgment  entered  in  an 
action  for  rent  in  arrcar  nmy  be  opened  when  a  default 
has  been  permitted  through  the  ignorance  or  mistake  of 
the  defendant.  {Reed  v.  Loiici'fi,  61  How.  Pr.  434). 
This  case  was  decided  before  section  1528  took  effect. 
It  is  supposed,  however,  that  the  provisions  of  that  sec- 
tion do  not  forbid  the  opening  of  the  judgment  hj  de- 


EJECTMENT.  23 

fault  imder  circumstances  under  which  the  court   in 
other  actions  would  set  aside  the  default. 

Where  the  plaintiff  has  taken  possession  of  real  prop- 
erty, by  virtue  of  a  tiual  judgment,  his  possession  shall 
not  be  in  any  way  affected  by  the  vacating  of  the  judg- 
ment, except  as  prescribed  in  section  15:25  or  section 
1526  of  the  code.  In  such  a  case,  if  the  defendant  there- 
after recovers  final  judgment  in  the  action,  it  must 
award  to  him  the  restitution  of  the  possession  of  the 
property ;  and  he  may  have  an  execution  thereupon  for 
the  deliverv  of  the  possession  to  him,  as  if  he  was  plain- 
tiff.    (Co.  Civ.  Proc.  §  1529). 

Sec.    4.    Effect  of  the  judgment. 

A  final  judgment  for  the  plaintiff,  rendered  in  an 
action  of  ejectment,  otherwise  than  upon  the  trial  of  an 
issue  of  fact,  is,  after  the  expiration  of  three  years  from 
the  filing  of  the  judgment-roll,  conclusive  upon  the  de- 
fendant, and  every  person  claiming  from,  through  or 
under  him,  by  title  accruing,  either  after  the  judgment- 
roll  is  filed,  or  after  a  notice  of  the  pendency  of  the 
action  is  filed  in  the  proper  county  clerk's  office,  as  pre- 
scribed in  sections  1670,  et  scq.  of  the  code  of  civil  pro- 
cedure.     (Co.  Civ.  Proc.  §  1526). 

The  provisions  of  this  section  provide  for  judgments 
entered  on  a  submission,  without  action  (  Lang  v.  Roplxe, 
1  Duer,  701)  ;  and  those  entered  after  the  decision  of  a 
demurrer  (Christie  v.  Bloomingdale,  18  How.  Pr.  12)  ; 
but  a  judgment  entered  after  an  inquest  taken  by  de- 
fault is  not  within  the  provisions  of  this  section.  [Sacia 
V.  O'Connor,  47  N.  Y.  Super.  Ct.  Rep.  53). 

Except  in  a  case  where  it  is  otherwise  expressly  pre- 
scribed in  the  code,  a  final  judgment  in  an  action  of 
ejectment,  rendered  upon  the  trial  of  an  issue  of  fact,  is 
conclusive,  as  to  the  title  established  in  the  action,  upon 
each  party  against  whom  it  is  rendered,  and  every  per- 
son claiming  from,  through,  or  under  him,  by  title  ac- 
cruing, either  after  the  judgment-roll  is  filed,  or  after  a 
notice  of  the  pendency  of  the  action  is  filed  in  the  proper 
county  clerk's  office,  as  prescribed  in  sections  1670, 
et  scq.  of  the  code.      (Co.  Civ.  Proc.  §  1524). 


1*4  IMtACTlCE. 

It  was  held  iu  \\  il.son  v.  Jhnol  (5  liosw.  (>1I>),  that  a 
ju(l<;nieut  in  ejectment  after  a  trial  would  not  alfect  one 
who  derived  tith'  from  the  (hd'endaiit  before  the  acti<m 
was  bejiun;  but  whether  or  not  tliat  woidd  be  so,  nn(h'r 
the  rode  of  civil  proccnlure,  depends  upon  the  (juestion 
whether  the  conveyance  under  which  he  claimed  title 
was  recorded  before  the  tiling'  of  the  notice  of  pendency 
of  action.  (See  Vol.  I,  p.  231)).  The  judgment  is  con- 
clusive against  the  parties  and  privies,  like  any  other 
judgment  (Bcchc  v.  Elliott,  4  Barb.  457)  ;  not  only  in 
other  actions  for  the  recovery  of  the  land,  but  in  actions 
for  mesne  protits.  (  Langrndi/ck  v.  Ihirhaiifi,  11  Johns. 
461).  It  is  like  a  judgment  in  rem.  {^kcUi)  v.  Jones, 
61  App.  Div.  173).  Judgment  in  favor  of  the  plain- 
tiff, against  the  occupants  of  premises  is  not  evidence 
against  the  landlord  in  another  action  {Ainslie  V. 
Manor,  etc.,  1  Barb.  168;  lirudt  v.  Church,  110  N.  Y. 
537)  ;  nor  is  it  evidence  against  one,  not  a  party,  who 
occupies  the  premises  during  the  pendency  of  the  action, 
but  under  another  p(  rson  than  the  defendant.  ( Thomp- 
son v.  (lark,  4  Hun,  164).  Where  one  has  entered  into 
possession  of  premises  which  are  the  subject  of  an  action 
of  ejectment  claiming  under  a  title  not  derived  from  the 
defendant,  and  which  accrued  before  the  recovery  of 
judgment  in  the  action,  the  fact  that  he  has  subse(|ueutly 
acquired  title  from  the  defendant  does  not  depi-ive  him 
of  the  right  of  claiming  possession  under  the  prior  title; 
and  the  judgment  is  neither  conclusive  nor  any  evidence 
against  him.  (HJieridan  v.  A)i(Ireirs,  41)  N.  Y.  478). 
Parol  evidence  may  be  given  to  show  what  lands  were 
the  subject  of  litigation  ( Frantz  v.  Ireland,  4  Lans. 
278)  ;  and  also  to  show  what  questions  were  litigated 
upon  the  trial,  if  they  wqyv  such  matters  as  might  have 
been  litigated  under  the  pleadings.  But  parol  evidence 
cannot  be  given  to  contradict  the  record.  {Bri(j<js  v. 
\yells,  12  Barb.  567). 


EJECTMENT.  25 


ARTICLE  IV. 

PROCEEDINGS    WHERE    ACTION    IS    BROUGHT    FOR    RENT    IN 

ARREAR. 

SECTION. 

1.  When  action  may  be  maintained. 

2.  Payment  or  redemption  by  tenant. 

Sec.    1.    Wlien  action  may  be  maintained. 

When  six  mouths'  rent  or  more  is  in  arrear,  upon  a 
grant  reserving  rent,  or  upon  a  lease  of  real  property, 
and  the  grantor  or  lessor,  or  his  heir,  devisee,  or  as- 
signee, has  a  subsisting  right  by  law  to  re-enter  for  the 
failure  to  pa^'  the  rent,  he  may  maintain  an  action  to 
recover  the  property  granted  or  demised,  without  any 
demand  of  the  rent  in  arrear,  or  re-entry  on  the  prop- 
erty.     (Co.  Civ.  Proc.  §  1504). 

In  the  cases  mentioned  in  this  section,  notice  to  quit 
need  not  be  given  nor  is  any  notice  of  the  intention  to 
re-enter  necessary,  nor  need  the  complaint  allege  a  de- 
mand for  payment  of  the  rent.  {Mayor,  etc.  v.  Camp- 
hell,  18  Barb.  156).  The  provisions  of  section  1505  of 
the  code  requiring  fifteen  days'  notice  of  the  intention  to 
re-enter,  do  not  apply  to  a  grant  in  which  the  right  to 
re-enter  arises  on  default  of  payment  by  the  tenant ;  but 
only  where  such  right  depends  on  the  sufficiency  of 
goods  whereon  to  distrain.  {Hosford  V.  Ballard,  39 
K  Y.  147). 

Where  a  right  of  re-entry  is  reserved  and  given  to  a 
grantor  or  lessor  of  real  property,  in  default  of  a  suffi- 
ciency of  goods  and  chattels  whereon  to  distrain  for  the 
satisfaction  of  rent  due,  the  re-entry  may  be  made,  or 
an  action  to  recover  the  property  demised  or  granted, 
ma}^  be  maiutaiued,  by  the  grantor  or  lessor,  or  his  heir, 
devisee,  or  assignee,  at  any  time  after  default  in  the 
payment  of  the  rent;  provided  the  plaintiff,  at  least  fif- 
teen days  before  the  action  is  commenced,  serves  upon 
the  defendant  a  written  notice  of  his  intention  to  re- 
enter, personally,  or  by  leaving  it  at  his  dwelling-house 
on  the  premises  with  a  person  of  suitable  age  and  dis- 
cretion ;  or,  if  the  defendant  cannot  be  found  v/ith  due 


26  ru  At  Tici:. 

dili<i-en('e,  and  has  no  dwclliiiji-hoiise  on  the  premises, 
whereat  a  pei-sou  of  suitable  age  and  diseretion  can  he 
found,  bj  posting  it  in  a  eonspicuous  plaee  (»u  the  prem- 
ises. (Co.  Civ.  Troe.  §  1505).  Where  the  right  of  re- 
entry is  only  in  default  of  a  sutiieieucy  of  goods  and 
chattels  whereon  to  distrain,  the  giving  of  the  notice 
prescribed  by  section  1505  must  be  shown,  (Martin  V. 
Ixcctor,  43  Hun,  371;  118  N.  Y.  470).  The  two  sections 
above  cited  apply  to  all  cases  where  the  right  to  re-enter 
existed  at  common  law.  {Van  Rensselaer  v.  Ball,  19 
N.  Y.  100). 

To  entitle  the  plaintiff  to  maintain  an  action  under 
these  sections  there  must  be  a  right  to  re-enter  existing 
at  the  time  of  the  commencement  of  the  action.  He 
cannot  maintain  an  action  where  the  lessee  has  been 
ejected  by  summary  proceedings.  (Htuijrc.sant  v.  Oriss- 
Icr,  12  Abb.  Pr.  X.  S.  6).  The  proceedings  in  actions 
under  these  sections  are  the  same  as  in  other  actions  of 
ejectment. 

In  such  an  action,  a  verdict,  report,  or  decision  in 
favor  of  the  plaintiff,  must  fix  the  amount  of  rent  in 
arrear  to  the  plaintiff,  or,  if  judgment  is  taken  by  de- 
fault, the  amoimt  thereof  must  be  ascertained  by  or 
under  the  direction  of  the  court ;  and,  in  either  case,  it 
must  be  stated  in  the  judgment.  (Co.  Civ.  Proc.  § 
1507). 

Where  a  portion  of  the  premises  described  in  the 
lease,  has  been  taken  possession  of  by  the  landlord,  the 
rent  must  be  apportioned,  according  to  the  value  of  the 
land  held  by  the  parties;  and  the  amount  of  rent  so 
apportioned,  determines  the  amount  which  the  defend- 
ant must  pay  to  redeem  that  part  of  the  land  which  has 
not  been  taken  possession  of  by  the  plaintiff.  {Church 
V.  Seeley,  39  Hun,  269;  110  N.'  Y.  457).  The  provision 
requiring  the  amount  of  rent  to  be  fixed  by  the  judg- 
ment is  not  for  the  purpose  of  making  the  judgment  one 
against  the  defendant  for  the  sum  of  money;  but  is 
intended  only  for  the  purpose  of  enabling  the  defendant 
to  avail  himself  of  the  privilege  of  redemption,  as 
treated  of  in  the  next  section  of  this  article.  (Van 
Rrus.srlaer  v.  \Vri(/hf.  121  N.  Y.  626). 


EJECTMENT.  27 

Sec.    2.    Payment  or  redemption  by  tenant. 

At  auy  time  before  tinal  jiidi;ineut  for  the  plaintiff  is 
rendered,  and  the  jiidgnieut-roU  is  liled,  in  an  action 
brought  as  prescribed  in  either  section  1504  or  1505,  the 
defendant  may  pay  or  tender  to  the  plaintiff  or  his  at- 
torney, or  pa}'  into  court,  all  the  rent  then  in  arrear, 
with  interest  and  the  costs  of  the  action  to  be  taxed; 
and  thereupon  the  complaint  must  be  dismissed.  (Co. 
Civ.  Proc.  §  1506). 

At  any  time  within  six  months  after  possession  of  the 
property,  awarded  to  the  plaintiff  in  such  an  action, 
has  been  delivered  to  him  by  virtue  of  an  execution  is- 
sued upon  a  judgment  rendered  therein,  the  defendant, 
or  any  person  who  has  succeeded  to  his  interest,  or  a 
mortgagee  of  the  lease,  or  of  any  part  thereof,  who  was 
not  in  possession  when  the  final  judgment  was  rendered, 
may  pay  or  tender  to  the  plaintiff,  or  his  executor,  ad- 
ministrator, or  attorney,  or  may  pay  into  court,  for  the 
use  of  the  person  so  entitled  thereto,  the  amount  of  rent 
in  arrear,  as  stated  in  the  judgment,  and  the  costs  of 
the  action,  with  interest,  and  all  other  charges  incurred 
by  the  plaintiff.      (Co.  Civ.  Proc.  §  1508). 

The  time  limited  for  redemption  under  this  section, 
begins  to  run  at  the  eviction  of  the  defendant,  by  writ 
of  possession  or  by  execution  for  the  delivery'  of  the 
property  to  the  plaintiff.  It  is  not  enlarged  by  the  sub- 
sequent re-entry  of  the  tenant.  {WltbecJv  v.  Van 
Rensselaer,  64  N.  Y.  27).  To  set  the  time  running 
against  the  mortgagee  of  a  lease  so  as  to  bar  his  right  to 
redeem,  there  must  have  been  open,  notorious  and  visi- 
ble eviction.  A  merely  nominal  and  secret  execution 
of  the  writ  is  not  sufficient.  (Neivell  V.  Wiglmm,  102 
N.  Y.  20). 

Within  three  months  after  making  the  payment  or 
tender,  the  person  who  made  it,  or  his  representative, 
may  apply  to  the  court  for  an  order  that  possession  of 
the  property  be  delivered  to  him;  and  thereupon,  upon 
proof  of  the  facts,  and  payment  of  the  sum  due  by  rea- 
son of  rent  accruing  since  the  judgment  was  rendered, 
and  upon  compliance  with  all  other  terms  to  be  com- 
pliefl  with  by  the  grantee  or  lessee,  to  the  time  of  the 


l'8  I'KArTici:. 

a])i)ll('atioii,  tlu'  court  must  iiuikc  an  order,  directing; 
tliat  possession  of  the  jtropertv  lie  deliveri'd  to  the  ap- 
plicant, who  shall  hdid  and  enjoy  the  same,  without  any 
now  ^rant  or  k'ase  ihei-ecd',  accordin<ij  to  the  terms  of  the 
orijjiinal  j^rant  or  h'ase.  Notice  of  the  application  must 
l>e  sencM^l  upon  the  plaintiff's  attorney.  (Co.  Civ.  Proc. 
§  150!)). 

If  possession  of  the  property  recovered  has  been  de- 
livered to  the  plaintitt",  by  virtue  of  an  execution  issued 
upon  a  jud<;nient  in  the  action,  the  onh'r  must  })rovide 
for  setting;-  off  the  sum  which  the  plaintiff  has  made,  or 
which  he  might,  without  wilfiU  negiect  have  made,  of 
the  pro])erty,  durinji  the  possession  thereof,  against  the 
rent  accruing;-  after  the  judgment  was  rendered,  and  for 
reimbursement  to  the  applicant  of  the  balance,  if  any, 
of  the  sum  paid  into  court  by  him,  after  making  the  set- 
off prescribed  in  this  section.      (Co.  Civ.  Proc.  §  1510). 


CHAPTER  L. 

PARTITION. 


ARTICLE  I.... In  what  cases  partition  may  be  had. 
ARTICLE  II..  .Proceedings  in  the  action. 
ARTICLE  III.  .Interlocutory  judgment  in  partition. 
ARTICLE  IV  .  .Commissioners  to  make  partition. 
ARTICLE  V  .  .  .  Proceedings  to  sell  real  property. 
ARTICLE  VI.. Final  judgment  in  partition. 


ARTICLE  I. 

IN    WHAT   CASES   PARTITION    MAY   BE   HAD. 

SECTION. 

1.  Nature  of  the  action. 

2.  By  joint  tenants  or  tenants  in  common. 

3.  By  remainderman. 

4.  By  infant. 

5.  By  heir,  when  devise  claimed  to  be  void. 

6.  Parties  to  the  action. 

7.  Notice  of  pendency. 

Sec.    1.    Nature  of  the  action. 

At  common  law,  estates  in  respect  to  their  owners, 
when  held  by  more  than  one  person,  were  divided  into 
estates  in  joint  tenancy,  tenancy  in  common,  and  copar- 
cenary ;  and  while  partition  in  every  case  could  be  made 
by  the  consent  of  all  the  owners,  yet  it  could  not  be 
compelled  between  joint  tenants  or  tenants  in  common 
until  a  statute  was  passed  during  the  reign  of  Henry 
VIII,  which  gave  to  all  such  the  right  to  compel  parti- 
tion by  suit.  Even  then,  only  actual  partition  could  be 
had  in  any  case;  the  property  could  not  be  sold  and  the 
avails  divided.  Very  early  in  the  history  of  this  state, 
there  was  recognized  the  necessity  for  the  passage  of  a 
statute  regulatino-  the   partition   of   property   held    by 

(29) 


;U)  I'UAcrici;. 

more  (han  one  owner.  Tlu'  |ii-caiiil)l('  to  the  a<-t  of  ITS') 
recites  (hat  '•  w  liei-cas  many  tfacts  of  land  in  this  state 
are  held  l»y  divers  owners  as  joint  tenants,  tenants  in 
common  and  copareeners,  and  sneh  tracts  cannot  h_v  hiw 
l>e  divich'd,  i>y  reason  of  the  absence,  infancy,  or  cover- 
tnre  of  some  <»f  the  projtrietors,  to  tlie  iii-eat  (h'trimewt  of 
the  owners,  and  the  i)rejndice  of  ai;ricnitnre;  therefore 
be  it  enacted,  etc."  That  act  j^ave  to  the  court  the  au- 
thority not  only  to  make  actual  i)artition;  but  where 
the  ends  of  justice  required  it,  to  decree  a  sale  (tf  the 
property,  or  a  portion  thereof,  and  a  division  of  the  pro- 
ceeils  of  the  sale,  and  a  release  of  the  ijropeity  sold  from 
all  claims  of  any  other  person  therein.  ^Vhile  the  gen- 
eral scope  and  intention  of  such  legislation  have  not 
been  materially  changed  by  subse(|uent  enactnu'uts,  the 
details  of  the  proceedings  in  partition  have  been  ren- 
dered more  specific  and  accurate.  The  entire  subject 
is  now  regulated  by  the  code  of  civil  ])rocedure.  The 
action  is  an  e<[uitable  action  {Jones  v.  '/ones,  G  X.  Y.  St. 
Rep.  736;  affd.,  120  X.  Y.  589)  ;  but,  though  equitable  in 
its  nature,  the  issues  of  fact  joined  in  the  action  are 
triable  by  a  jury;  and  unless  the  court  directs  the  issues 
to  be  stated,  as  prescribed  in  section  970  of  the  code,  the 
issues  may  be  tried  upon  the  pleadings.  (Co.  Civ.  Proc. 
§  1544). 

As  to  whether  the  action  is  one  in  rem,  the  authori- 
ties are  not  harmonious  (Van  Orman  v.  rhclpH,  9  Barb. 
500;  Green  leaf  v.  lirooldyn,  etc.,  R.  R.  Co.,  141  N.  Y. 
395)  ;  but  the  supreme  court  has  jurisdiction  as  in  pro- 
ceedings qud.si  in  rem,  that  is,  it  has  general  jurisdiction 
over  the  subject  matter  of  the  action.  {'Jenkins  v. 
Faliey,  73  N.  Y.  355).  An  action  of  partition,  while 
originally  limited  to  the  (piestion  of  partition  among 
])ersons  who  were  concededly  entitled  to  a  share  in  the 
property,  has  been  extended  in  its  scope  so  as  to  include 
the  trial  of  the  (juestion  of  the  plaintiff's  or  defendant's 
title  to  the  property  sought  to  be  partitioned;  so  that 
those  cases  which  held  that  the  right  to  trv  the  title 
could  not  be  exercised  in  an  action  of  partition,  but 
only  in  an  action  of  ejectment,  are  no  longer  the  law. 
{^Veston  V.  Htoddard,  137  N.  Y^  11^ ;  ^atterlee  v.  Kohbc, 


PARTITION.  31 

173  N.  Y.  91;  Wallace  v.  McEchron,  176  N.  Y.  424). 
This  point  will  be  further  treated  of  in  the  following 
article,  under  the  section  devoted  to  the  answer.  A 
very  interesting  history  of  the  legislation  on  the  sub- 
ject of  partition  in  this  state,  is  found  in  the  opinion  of 
Davies,  J.,  in  the  case  of  Mead  v.  Mitchell  (5  Abb.  Pr. 
92;  affd.,  17  N.  Y.  210). 

Sec.    2.    By  joint  tenants  or  tenants  in  common. 

Subdivision  1. — When  by  Parol,  or  Agreement. 

Even  at  common  law,  partition  could  be  made  by  the 
consent  of  all  the  owners;  but  not  compelled.  So  now, 
the  parties,  if  of  full  age  and  competent  to  contract,  may 
make  partition  by  parol,  either  by  deed,  or  by  declara- 
tion, followed  by  possession.  ( Wood  v.  Fleet,  36  N.  Y. 
499 ) .  The  severance  of  the  premises  being  the  object  of 
the  parties,  their  voluntary  act  in  carr-ying  into  effect  a 
parol  partition,  will  bind  them  and  all  who  claim  under 
them.  ( Id. ) .  Such  an  arrangement  when  carried  out 
between  the  owners,  will  serve  effectually  to  sever  the 
premises,  {Jackson  v.  Harder,  4  Johns.  202).  Where 
the  parties  acquiesce  in  such  a  partition,  all  incidental 
rights,  such  as  curtesy  or  dower,  attach  only  to  the  por- 
tion set  apart  for  the  person  as  his  share  of  the  estate. 
(Furguson  Y.  Tioeedy,  56  Barb.  168;  affd.,  43  N.  Y. 
543 ) .  But  parol  agreement  alone  cannot  alone  cannot 
terminate  the  unity  of  possession,  and  a  right  in  the 
nature  of  an  easement  cannot  be  thus  created  {Taylor 
V.  Millard,  118  N.  Y.  244)  ;  nor  can  lienors  upon  an  un- 
divided interest  be  bound  by  a  voluntary  partition. 
{Jordan  v.  Poillon,  77  N.  Y.  518).  Of  course  where 
any  of  the  parties  are  infants,  or  persons  of  unsound 
mind  and  incapable  of  giving  a  valid  consent  to  such 
partition  by  parol,  it  follows  that  such  partition  cannot 
be  made,  except  by  statutory  authority.  Such  authority 
is  given  in  the  following  sections  of  the  code,  to  the  guar- 
dian of  the  infant  or  the  committee  of  the  person  of  un- 
sound mind : 

Where  an  infant,  idiot,  lunatic,  or  habitual  drunkard, 
holds  real  property,  in  joint  tenancy  or  in  common,  the 


32  ritACTicK. 

ut'iR'nil  uiiardiaii  of  llic  infant,  (H-  the  ronnnitttH'  of  the 
idiot,  Innalic,  ni-  haliitual  dinnUai-tl,  niav  apply  to  the 
supreme  <-ourt,  or  to  the  county  court  of  the  county, 
wherein  the  real  i)rop(rty  is  situated,  for  authority  to 
aoree  to  a  partition  of  the  real  property.  (Co.  Civ, 
Proc.  §  ihlH)). 

Smh  an  application  must  be  by  a  petition,  wiiich  must 
describe  the  real  property  proposetl  to  be  jiart  it  ioned  ; 
must  state  the  ritihls  and  interests  of  the  se\-eral  owners 
thereof;  must  specify  the  particular  partition  proposed 
to  be  made;  and  must  be  veritied  by  affidavit.  The  court 
may  order  notice  of  the  application  to  be  niven  to  such 
persons  as  it  thinks  proper.      (Co.  Civ.  Proc.  §  1591). 

If  after  due  iuciuiry  into  the  merits  of  the  application, 
by  a  reference  or  otherwise,  the  court  is  of  the  opinion 
that  the  interests  of  the  infant,  or  of  the  idiot,  lunatic,  or 
habitual  drunkard,  will  be  promoted  by  the  partition,  it 
may  make  an  order,  authorizinu'  the  petitioner  to  aji,ree 
to  the  partition  proposed,  and,  in  the  name  of  the  infant, 
or  of  the  idiot,  lunatic,  or  habitual  drunkard,  to  execute 
releases  of  his  riiilit  and  interest  in  and  to  that  part  of 
the  propert}',  which  falls  to  the  shares  of  the  other  joint 
tenants  or  tenants  in  common.  The  court  may,  in  its 
discretion,  for  the  furtherance  of  the  interests  of  said 
infant,  idiot,  lunatic,  or  habitual  drunkard,  direct  par- 
tition to  be  so  made  as  to  set  off  to  him  or  them,  his  or 
tin  ir  share  in  common  Avith  any  of  the  other  owners, 
provided  the  consent  in  writiui;-  thereto  of  such  owners 
shall  be  first  obtained.      (Co.  Civ.  Proc.  §  1592). 

Releases  so  executed  have  the  same  validity  and  effect, 
as  if  they  were  executed  by  the  person  in  whose  behalf 
they  are  executed,  and  as  if  the  infant  was  of  full  a^e, 
or  the  idiot,  lunatic,  or  habitual  drunkard  was  of  sound 
mind,  and  competent  to  manaj!:e  his  affairs.  (Co.  Civ. 
Proc.  §  1593). 

The  practice  on  a  reference  in  such  a  case,  is  the  same 
as  in  other  references  to  ascertain  and  report  a  fact,  and 
will  be  found  treatefl  of  in  volume  II,  p.  410,  ct  scq. 

Husband  and  wife  may  make  partition  or  division  of 
any  real  y^roperty  held  by  them  as  tenants  in  common. 


PAUTITIOX.  33 

joint  tenants,  or  tenants  by  the  entireties.  If  so  ex- 
pressed in  the  instrument  of  partition  or  division,  such 
instrument  bars  the  wife's  right  to  dower  in  such  prop- 
erty, and,  also,  if  so  expressed,  the  husband's  tenancy 
by  curtesy.      (The  Domestic  llelations  Law,  §  26). 

Subdivision  2. — ^VHEN  by  Action. 

The  sections  of  the  code  of  civil  procedure  which 
specify  tlie  cases  in  which  tlie  action  of  partition  may  be 
brought,  will  be  found  quoted  in  volume  1,  at  page  170, 
et  seq.  The  supreme  court  rules  also  provide  that 
where  several  tracts  or  parcels  of  laud  lying  within  this 
state  are  owned  by  the  same  persons  in  common,  no 
separate  action  for  the  partition  of  a  part  thereof  only 
shall  be  brought,  without  the  consent  of  all  the  parties 
interested  therein ;  and  if  brought  without  such  consent, 
the  share  of  the  plaintiff  may  be  charged  with  the  whole 
cost  of  the  proceeding.  And  when  infants  are  in- 
terested, the  petition  shall  state  whether  or  not  the  par- 
ties own  any  other  lands  in  common.  (Genl.  Kule  65), 
A  failure,  however,  to  comply  witli  Rule  65  is  not  a 
ground  of  demurrer.  {Pritchard  v.  Draft,  32  Hun, 
417). 

The  courts  which  have  jurisdiction  of  this  action  are 
the  supreme  court  (Vol.  I,  p.  60),  and  the  county  courts 
within  their  respective  counties  (Id.  72).  The  rules 
respecting  the  place  of  trial  of  the  action  of  partition, 
will  be  found  stated  in  volume  II,  of  this  work,  at  page 
127,  et  seq.  The  supreme  court  having  both  legal  and 
equitable  jurisdiction,  which  it  exercised  prior  to  the 
statutes  regulating  the  action  of  partition,  it  has  the 
authority  to  determine  whether  those  statutes  have  been 
complied  with,  and  when  it  has  acquired  jurisdiction 
{Bhikelei/  v.  Calder,  15  N.  Y.  617;  Howell  v.  Mills,  56 
N.  Y.  226)  ;  and  such  determination,  the  court  having 
jurisdiction  of  the  parties,  cannot  be  attacked  collater- 
ally (O'Donoghue  v.  Hmith,  85  App.  Div.  824;  Livings- 
ton v.  Livim/stofh  56  App.  Div.  484;  affd.,  166  N.  Y.  601; 
Parish  V.  Parish,  175  N.  Y.  181)  ;  although  in  O'Donog- 
3 


34  I'KAC'iici;. 

hue  V.  lioKs  (IT)!)  N.  Y.  ST  I,  llic  coui't  of  ;i|t]K';ils  was 
(MHially  (li\i(l('(l  on  lliis  (|ii('si  idii.  A  jiarlv  (tf  full  aj;e 
by  n cciviiiu  his  jxtrtioii  of  llic  avails  of  a  sale  in  jtarli- 
tion  is  cstoitjK'd  from  ([nest  ioninu:  collaterally  the  jni-is- 
(liclion  of  the  courl,  an<l  il  .scchis  an  infant  may  he  thus 
esto|)})('(l  Ity  a  i)aymcnt  made  to  his  ^cnci-al  iiUJU-diaTi. 
{Miller  v.  XdiiiiKiiiii .  S5  Ai»p.  I)iv.  'A'M ) .  Althou<;li  the 
action  is  local  in  its  nature,  yet  when  the  parties  have 
aoreed  not  to  (juestion  the  jnrisdiction  of  the  courts  of 
this  state,  or  not  to  institute  similar  proceedings  in 
another  state  where  part  of  the  property  is  located,  they 
will  not  be  permitted  to  (piestion  or  den}'  the  jurisdic- 
tion of  the  courts  of  this  state.  {Bowers  v.  Darunt,  43 
Hun,  348).  Where  there  is  no  land  situated  in  the 
county  named  in  the  summons  as  the  ])lace  of  trial,  that 
fact  does  not  take  away  the  jurisdiction  of  the  court; 
and  the  action  may  be  tried  in  such  county,  unless  the 
objection  is  taken  in  due  form.  (Co.  Civ.  Proc.  §  985; 
Kimball  v.  Ma  pes,  19  Wk.  Dig.  481;  affd.  without  op., 
98  N.  Y.  629).  Partition  between  tenants  in  common  or 
joint  tenants  is  a  matter  of  right  {Smith  v.  Smith,  10 
Paige,  470)  ;  still  the  court  will  not  allow  that  right  to 
be  exercised  at  an  inopportune  time,  when  it  would  pre- 
judice the  owners  of  the  property  (Danrcrs  v.  Dorritij, 
14  Abb.  Pr.  206)  ;  as  where  an  action  was  pending  for 
the  dissolution  of  a  partnership  and  an  accounting,  in- 
volving the  real  property  in  question,  the  court  dis- 
missed the  complaint  in  the  partition  suit  on  the  ground 
that  a  man  has  no  right  to  make  another  a  party  to  an 
action,  while  the  controversy  is  in  the  course  of  settle- 
ment in  another  court.  (Id).  So,  also,  where  land 
is  held  by  an  executor  having  the  power  to  sell,  partition 
cannot  be  had,  to  defeat  that  power  {Henderson  v.  Hen- 
derson, 113  N.  Y.  1),  unless  the  executor  unreasonably 
delays  to  use  it.  {Pnrdy  v.  Wrirjht,  44  Ilun,  239).  To 
prevent  partition,  the  power  of  sale  must  however  be 
imperative,  so  as  to  effect  an  equitable  conversion,  and 
not  merely  discretionary  {Carhcrry  v.  Ennis,  72  App. 
Div.  489)  ;  although  the  existence  of  such  discretionary 
power  may  be  considered  upon  an  application  made  in 


PARTITION.  35 

behalf  of  an  infant  for  leave  to  bring  an  action  of  par- 
tition. (Thompson  v.  Hart,  58  App.  Div.  439).  An 
equitable  conversion  which  will  prevent  partition  may, 
however,  result  from  the  general  scheme  of  the  Avill,  al- 
though the  power  of  sale  may  not  be  in  terms  impera- 
tive. {McGoimn  v.  Tiift,  35  Misc.  603).  If  there  has 
been,  however,  an  effectual  reconversion  by  act  of  the 
parties,  an  action  of  partition  will  lie.  (Scott  v.  Doug- 
lass, 39  Misc.  55G;McDo}iaId  V.  0\Hara,  144  N.  Y.  566). 
During  the  continuance  of  a  valid  trust  of  the  entire 
property  an  action  of  partition  will  not  lie  (ilforse  v. 
Morse,  85  N.  Y.  53;  Garvcy  v.  Uuion  Trust  Co.,  29  App. 
Div.  513;  Sicker  v.  Sicker,  23  Misc.  737)  ;  although  the 
validity  of  the  trust  can  be  attacked  in  the  action. 
(Dresser  v.  Travis,  39  Misc.  358).  A  beneficiary  can 
not  bring  the  action  even  after  the  death  of  the  trustee 
(Horsefield  v.  Black,  40  App.  Div.  264)  ;  nor  can  a  re- 
mainderman after  a  trust  estate  for  life  maintain  the 
action  before  the  termination  of  the  trust.  (Fiersou  v. 
Van  Bergen,  23  Misc.  547;  Woodivard  v.  James,  115 
N.  Y.  346). 

An  agreement  between  co-tenants  not  to  partition  real 
property  during  a  specified  time,  supported  by  a  suffi- 
cient consideration,  is  a  legal  defense  to  an  action 
brought  during  such  time.  (Brown  v.  Coddington,  72 
Hun,  147). 

Partition  cannot  be  had  in  contravention  of  the  terms 
of  the  will  or  other  instrument  through  which  plaintiff 
derives  his  title.  (Zuenzer  v.  Minzenmair,  20  Misc.  212; 
Sicker  v.  Sicker,  supra;  Baldwin  v.  Humphrey ,  44  N.  Y. 
609). 

The  rule  at  common  law  was  that  an  action  of  parti- 
tion could  not  be  brought  unless  the  plaintiff  was  in 
actual  or  constructive  possession  of  the  property;  and  if 
the  defendant  denied  the  fact  of  tenancy  in  common  or 
joint  tenanc}^,  and  claimed  title  in  himself,  the  action  of 
partition  was  postponed  to  await  the  decision  of  the 
question  of  title.  The  action  being  strictly  equitable 
and  triable  by  the  court  of  chancery,  as  soon  as  the  legal 
question  of  title  came  up,  the  jurisdiction  of  the  court 


3G  PRACTICE. 

(»f  chancery  at  once  (criiiiualcd,  and  the  bill  of  partition 
had  to  he  dismissed;  and  the  phuntill'  was  coiiipellcd  to 
bring  an  action  of  ejectment  in  a  court  of  law,  where  the 
(|uestion  of  title  could  be  tried  before  a  jury.  As  the 
suju'eme  court  of  this  state,  however,  possesses  both  legal 
and  equitable  jurisdiction,  the  circuity  of  action  under 
the  old  practice  became  unnecessary;  and  \('r\  soon 
after  the  adoption  of  our  constitution,  the  legislature  en- 
larged the  scope  of  the  action  so  that  heirs  at  law  who 
claimed  that  they  were  entitled  to  share  in  the  estate  of 
their  ancestor,  might  bring  an  action  of  jjartition  against 
those  who  were  in  actual  possession,  claiming  to  hold  by 
devise,  if  they  alleged  that  the  devise  was  void.  They 
were  authorized  to  bring  the  action  whether  they  were 
in  possession  or  not;  and  to  have  the  question  of  title 
trietl  by  a  jury.  (Laws  1853,  Chap.  238;  Co.  Civ.  Proc. 
§  1537).  See  Vol.  I,  p.  170,  for  the  section  of  the  code 
that  contains  the  rule  in  this  case. 

By  section  1513  of  the  code,  the  same  rule  is  extended 
to  all  actions  for  partition;  and  by  the  next  section  it  is 
provided  that  the  issues  of  fact  in  such  cases  are  triable 
by  jury.  The  whole  controversy  may  now  be  tried  in 
one  action;  and  not  only  has  the  court  the  right  by  the 
judgment  to  determine  the  rights  of  the  plaintitt"  and 
the  defendants  in  the  action,  but  the  rights  as  between 
the  defendants  themselves.  (Co.  Civ.  Proc.  §  1543). 
It  also  has  power  in  a  proper  case  to  order  a  sale  of  both 
real  and  personal  property.  (Prentice  v.  Jaiis.scu,  70 
N.  Y.  478).  The  possession  referred  to  in  section  1532 
is  the  legal  right  to  possession,  and  not  merely  the  visi- 
ble possession;  for  where  one  is  legally  entitled  to  pos- 
session, although  forcibly  held  out  by  his  co-tenant,  the 
law  regards  the  possession  of  the  co-tenant  as  his  posses- 
sion, so  far  as  his  right  to  bring  the  action  is  concerned. 
{Florence  v.  Hopkins,  46  N.  Y.  182;  AWtinman  v.  Hamp- 
ton, 110  X.  Y.  429).  His  contention  is  not  only  as  to 
the  share  to  which  he  is  entitled,  but  the  more  important 
one  a.s  to  whether  he  is  entitled  to  any  share  of  the  prop- 
erty, {(iedncjf  v.  PraU,  25  N.  Y.  St.  Kep.  343;  s.  c,  6 
N.Y.  Supp.  165;  affd.  without  op.,  127  N.   Y.  686). 


PARTITION.  37 

Yery  maii,y  rulings  before  the  code  upon  this  subject, 
which  held  that  a  party  could  not  maintain  partition 
when  the  person  in  possession  denied  the  co-tenancy,  or 
held  the  land  adversely,  are  no  longer  authority ;  as  such 
a  contention  merely  extends  the  action,  under  the  code, 
so  as  to  include  the  trial  of  the  question  of  title.  {Wes- 
ton V.  Stod(hn-d,  137  N.  Y.  119).  The  case  of  Florence 
V.  Hopkins  (supra),  while  it  is  an  authority  as  to  the 
proposition  to  which  it  is  cited  above,  is  superseded  by 
the  provisions  of  the  code,  so  far  as  it  decides  that  pos- 
session is  absolutely  necessary  to  the  bringing  of  the 
action.  The  case  of  WaiiiHian  v.  Hampton  (110  N.  Y. 
429),  although  decided  eight  ^ears  after  the  sections 
above  referred  to  took  effect,  arose  before  that  time,  and 
does  not  attempt  to  decide  what  the  rights  of  the  parties 
would  be  under  the  code;  and  in  the  case-  of  Hulse  v. 
Hulse  (23  N.  Y.  St.  Rep.  123),  the  question  was  not 
necessarily  involved,  and  in  so  far  as  the  dicta  of  the 
court  might  seem  to  sustain  the  old  rule,  it  clearly  was 
not  the  intention  of  the  court  to  decide  that  point.  At 
all  events,  the  case  of  Weston  v.  Stoddard  (supra),  has 
definitively  settled  that  possession  is  not  necessary  to 
maintain  the  action. 

There  may  be  tried  in  an  action  of  partition  the  issues 
as  to  whether  the  deed  under  which  plaintiff  claims  was 
ever  delivered  (Booth  v.  Fordham,  73  App.  Div.  109) ; 
or  whether  the  deed  under  which  a  defendant  claims  ex- 
clusive ownership  was  obtained  by  fraud  or  undue  in- 
fluence (Drake  V.  Drake,  61  App.  Div.  1)  ;  or  whether  a 
sheriff's  deed  under  which  a  defendant  claims  exclusive 
ownership  is  valid.  (Di.ron  v.  Di.ron,  38  Misc.  652; 
revel,  on  other  gTounds,  89  App.  Div.  603).  Plaintiff 
need  not  have  strict  pedis  possessio.  A  present  right 
of  possession  is  sufficient;  and  all  questions  of  title 
arising  between  the  parties  can  be  disposed  of  in  the 
action.  (Weston  v.  ^Stoddard,  137  N.  Y.  119).  Persons 
holding  adversely  separate  portions  of  the  real  property 
sought  to  be  partitioned  may  be  joined  as  defendants  in 
one  action  and  their  respective  rights  determined 
therein,  i^atterlee  v.  Kohhe,  173  N.  Y.  91;  Wallace  v. 
McEchron,  176  N.  Y.  424). 


38  I'UACIU-K. 

Sec.    3.    By  reinainderiuan. 

Where  two  or  more  persons  liold,  as  joint  tenants,  or 
as  tenants  in  common,  a  vested  remainder  or  reversion, 
any  one  t)r  more  of  them  may  maintain  an  action  for 
the  partition  of  the  real  property  to  which  it  attaches, 
accordinji"  to  their  respective  shares  therein,  subject  to 
the  interest  of  the  person  holding-  the  particular  estate 
therein,  but  no  sale  of  the  premises  in  such  an  action 
shall  be  made  except  by  and  with  the  consent  in  writinjjf, 
to  be  acknowledged  or  proved  and  certified  in  like  man- 
ner as  a  deed  to  be  recorded,  by  the  person  or  persons 
owning  and  holding  such  particular  estate  or  estates; 
and  if  in  such  an  action  it  shall  appear  in  any  stage 
thereof,  that  partition  or  sale  cannot  be  made  without 
great  prejudice  to  the  owners,  the  complaint  must  be 
dismissed.  The  dismissal  of  the  complaint,  as  herein 
provided,  shall  not  affect  the  right  of  any  party  to  bring 
a  new  action  after  the  determination  of  such  particular 
estate.      (Co.  Civ.  Proc.  §  1533). 

The  provisions  of  this  section  of  the  code  have  been 
inserted  to  settle  a  doubt  which  existed  in  regard  to  the 
rights  of  remaindermen  or  reversioners  to  bring  an 
action  for  partition.  Cases  often  arise  where  it  is  es- 
sential to  the  interests  of  the  owner  of  an  undivided 
share  in  reversion,  that  his  estate  should  be  severed  from 
that  of  his  co-tenants,  if  it  can  be  done  by  actual  parti- 
tion. The  statute  is  very  guarded  in  such  a  case,  how- 
ever, and  throws  every  safeguard  around  the  life  estate, 
or  other  particular  estate  in  the  property;  so  that  where 
an  actual  partition  cannot  be  made,  the  complaint  will 
be  dismissed,  unless  the  person  owning  such  particular 
estate  give  his  written  consent  to  a  sale  of  the  property. 
Even  that  provision  was  not  contained  in  the  statute  un- 
til the  amendment  of  1SS7.  The  sale  of  the  property 
would  defeat  the  very  intent  of  the  person  who  created 
the  particular  estate;  and  the  court  will  not  permit  that 
to  be  done  without  the  consent  of  the  person  owning 
that  estate.  Where,  how<'ver,  only  actual  partition  is 
desired,  and  it  can  be  made  without  prejudice  to  the 
owners,  and  subject  to  the  particular  estate,  it  may  be 
had,  although  (me  of  the  reversioners  or  remaindermen 


PARTITION.  39 

is  the  person  who  holds  the  particular  estate.  {Mason 
V.  Mason,  Daily  Register,  Xov.  30,  1885).  A  remain- 
derman cannot  compel  the  person  holding  the  life  or 
other  particular  estate  to  partition,  as  his  rights  cannot 
he  changed  without  his  consent  (HufjJics  v.  Hughes,  2 
Civ,  Proc.  Kep.  139;  atld.,  30  Hun,  341))  ;  but  the  court 
has  jurisdiction  of  the  action ;  and  a  purchaser  will  not 
be  relieved  from  his  purchase  on  the  ground  of  the  exist- 
ence of  a  particular  estate,  where  all  the  parties  in  in- 
terest acquiesce  in  a  judgment  directing  a  sale  of  the 
premises  {BJakely  v.  Caldcr,  15  N.  Y.  617;  Brevoorf  v. 
Brevoort,  TO  N.  Y.  136)  ;  and  Avhere  the  particular  estate 
is  held  by  more  than  one  person,  as  tenants  for  life  or 
for  years,  tliey  may  partition  among  themselves,  and 
join  the  remainderman  as  a  defendant.  (Jenkins  v. 
FaJici/,  73  N.  Y.  355).  A  trustee  of  the  entire  premises 
cannot  give  the  consent  to  a  sale  required  by  section 
1533  if  any  part}^  to  the  action  duly  objects  thereto. 
{Pierson  v.  Tan  Bergen,  23  Misc.  547).  As  to  how 
partition  is  made,  or  the  proceeds  of  a  sale  are  divided, 
where  a  life  or  other  particular  estate  exists,  see  section 
3,  article  IV,  and  section  5,  article  V,  of  this  chapter. 

Sec.    4.    By  an  infant. 

The  section  of  the  code  which  gives  the  cases  in  which 
an  infant  may  bring  an  action  of  partition,  will  be  found 
quoted  at  volume  I,  at  page  170;  and  the  section  speci- 
fying the  bond  required  to  be  given  by  his  guardian  ad 
litem  is  given  in  the  same  volume,  at  page  186.  A  guar- 
dian ad  litem  for  an  infant  party  in  an  action  of  parti- 
tion can  only  be  appointed  by  the  court  (Co.  Civ.  Proc. 
§  1535)  ;  except  that  in  the  first  judicial  district,  the 
code  provides  that  any  motion  (except  for  a  new  trial 
upon  the  merits)  may  be  made  to  a  judge  out  of  court, 
which  elsewhere  must  be  made  in  court.  (Co.  Civ.  Proc. 
§  770;  Dishroic  v.  Folger,  5  Abb.  Pr.  53).  A  general 
guardian  cannot  act  for  the  infant  as  guardian  ad  litem; 
but  if  the  infant  is  under  fourteen  the  general  guardian 
may  apply  to  the  surrogate  for  the  authority  to  bring  the 
action.  An  omission  to  appoint  a  guardian  ad  litem  is 
a  radical  defect  in  the  proceedings;  and  a  purchaser  will 


40  I'UACTici:. 

not  be  iv<iiiiiv«l  lo  (•(»mi»U'l('  his  purchase  aud  take  title 
under  a  decree  w  hicii  is  so  (U'fective  that  it  couhl  be  set 
asi(h'  for  error,  even  tiutnuh  The  infant  execute  a  release 
after  beconiinn-  of  full  aiic  (  Ko/ih  r  v.  Kolilcr,  2  Edw. 
Cli,  CD).  The  facts  which  warrant  the  surroj^ate  in  giv- 
ini>-  authority  to  an  infant  to  briuii  the  action  must  be 
set  forth  {Re  ^Jarsa<■,  15  How.  Pr.  3.S3)  ;  aud  the  require- 
ments of  the  section  upon  the  application  for  such  au- 
thority must  be  complied  with,  as  the}'  go  to  the  very 
foundation  of  the  authority  to  bring  the  suit;  and  a  non- 
comi)liance  with  those  requirements  has  been  held  to  be 
sufficient  ground  for  the  discharge  of  a  purchaser  under 
a  decree  of  sale,  and  an  order  that  the  money  be  re- 
funded. (  Clark  V.  Clark,  21  How.  Pr.  479).  The  leave 
to  bring  the  suit  may  be  given  iiidh-  pro  tunc,  however, 
after  action  begun.  (PcarsaU  v.  Rosrbrook,  42  ^lisc. 
10).  The  right  of  the  infant  is  not  complete  until  all 
the  requirements  of  the  statute  have  been  fulfilled,  and 
a  guardian  ad  Viton  has  been  appointed  who  is  capable 
of  giving  the  required  security.  U^ylc  v.  Smith,  13 
How.  Pr.  104).  The  guardian  cannot  act  until  he  has 
filed  the  bond  required  by  section  1530  of  the  code.  It 
has  been  held,  however,  that  if  the  guardian  a<l  litem 
failed  to  file  the  required  bond,  the  court  might  order  it 
filed  )U(nc  pro  tunc  at  any  stage  of  the  action,  even  after 
judgment  and  sale  {Crogan  v.  Jjiriufj.stoii ,  IT  N.  Y.  218; 
Walter  v.  DeGraaf,  19  Abb.  N.  C.  406)  ;  and  as  the 
statute  requires  a  bond  to  each  infant,  the  guardian 
should  execute  and  file  as  many  bonds  as  there  are 
infants  for  whom  he  appears,  and  a  failure  to  file  a 
bond  in  favor  of  each  infant  is  an  irregularity;  but  it 
does  not  divest  the  court  of  jurisdiction;  nor  will  a  pur- 
chaser be  relieved  from  his  purchase  on  that  ground. 
(Reed  V.  Rerd,  46  Hun,  212;  afifd.,  107  N.  Y.  545; 
Crouter  v.  ('router,  133  N.  Y.  55).  As  to  the  appoint- 
ment of  a  guardian  ad  litem  for  an  infant  party  in  par- 
tition, see  volume  I,  pages  182,  18<),  et  .syy/.  The  rule 
as  to  the  appointment  of  such  guardian  for  an  infant 
defendant  who  is  a  non-resident,  is  the  same  as  in  other 
actions,  except  as  above  noted.  Where  infants  are 
thus  represented  by  a  guardian  ad  litem,  they  are  bound 


PARTITION.  41 

by  the  final  judgment,  equally  as  adults.  (Prior  v. 
Prior;,  49  Hun,  502).  So  where  such  guardian  has 
failed  to  raise  proper  objections  to  the  proceedings,  in 
the  interests  of  such  infants,  their  only  remedy  is  against 
the  guardian;  and  he  will  be  held  liable  to  them  for 
whatever  damages  they  may  have  sustained.  (Reed  v. 
Reed,  supra ) .  The  final  judgment  divests  them  of  any 
other  remedy.      ( Id ) . 

A\  here,  during  the  pendency  of  an  action,  children 
have  succeeded  to  the  title  of  an  undivided  interest,  they 
must  be  joined  as  parties,  in  order  to  be  bound  by  the 
judgment.  {MiUer  v.  Wright,  14  N.  Y.  St.  Rep.  811; 
109  N.  Y.  194;  see,  also,  Moore  v.  Applehy,  108  N.  Y, 
237). 

As  we  have  seen  in  section  one  of  this  article,  the 
general  guardian  of  an  infant  may  act  for  the  infanty 
where  it  is  sought  to  make  partition  by  deed  or  agree- 
ment. 

Sec.    5.    By  heir,  irlien.  devise  claimed  to  be  void. 

The  section  of  the  code  specifying  the  cases  in  which 
an  heir  may  bring  an  action  against  those  who  are  in 
possession  under  a  void  devise,  is  given  in  volume  I,  at 
pages  171-172,  and  see  also  section  two  of  this  article. 

Where  an  heir  brings  an  action  of  partition  under  sec- 
tion 1537  of  the  code,  the  invalidity  of  the  devise  must 
extend  to  the  whole  will,  or  to  an  entire  devise  of  real 
property.  {McKeon  v.  Kearney,  57  How.  Pr.  349).  The 
heir  must  be  an  heir  of  a  party  Avho  was  either  actually 
or  constructively  in  possession  of  the  property  at  the 
time  of  his  death ;  he  cannot  under  this  section  bring  his 
action  to  partition  premises  of  which  his  ancestor  was 
not  seized.  ( Greene  v.  Greene,  23  N.  Y.  St.  Rep.  869 ; 
s.  c,  7  N.  Y.  Supp.  30).  Nor  can  he  sustain  his  action, 
the  effect  of  which  would  be  to  defeat  the  power  given 
an  executor  to  sell,  under  the  will,  unless  he  alleged  and 
established  that  such  will  was  void.  (Henderson  V. 
Henderson,  113  N.  Y.  1).  But  for  the  limitations  of 
this  rule  as  to  the  effect  of  a  power  of  sale  see  subdivi- 
sion 2  of  section  2  of  this  article.  To  bring  a  case  within 
the  scope  of  section  1537,  the  plaintiff  must  allege  and 


42  I'KACTICE. 

prove  that  he  is  an  heir  claiming  lands  by  descent  from 
an  ancestor  who  died  in  possession  of  the  same,  and  that 
the  same  are  held  under  an  api)arent  devise  which  is 
void  {]'ocfisiii(j  V.  ^'ocss'u^(J,  1'2  Hun,  078;  Holder  v. 
II older,  40  App.  Div.  255)  ;  and  a  case  is  not  brought 
within  the  section  by  an  allcj^ation  that  the  devisee 
caused  the  death  of  the  testator  for  the  purpose  of 
realizing  the  benefits  given  by  the  will.  {Ullerson  v. 
We.stcott,  US  N.  Y.  149).  The  fact  that  a  party  holds 
adversely  under  a  void  devise  furnishes  the  reason  for 
the  rule  which  permits  those  heirs  who  are  kept  out  of 
possession  to  bring  their  action  and  test  as  well  the 
title  as  the  division  of  the  property.  (Hewlett  v.  Wood, 
62  N.  Y.  75;  Weston  v.  t^toddard^lSl  N.  Y.  119).  This 
action  nmy  be  brought  against  the  grantee  in  possession 
together  with  his  grantor  who  claims  under  such  void 
devise;  both  are  necessary  parties.  [Malaney  v.  Cronin, 
44  Hun,  270).  The  act  of  1S53  (Chapter  238),  the  pre- 
decessor of  section  1537  of  the  code,  is  very  fully  dis- 
cussed in  the  cases  of  Ward  v.  Ward  (23  Hun,  431)  and 
Wa</er  v.  Wager  (Id.  439).  An  heir  may  bring  the 
action  although  in  probate  proceedings  in  the  surro- 
gate's court,  and  after  a  verdict  of  a  jury  therein,  the 
will  has  been  adjudged  valid.  (Boicen  v.  Sweeny,  89 
Hun,  359;  affd.  without  op.,  154  N.  Y.  780).  Plaintiff 
can  unite  with  a  cause  of  action  under  this  section,  other 
causes  of  action  arising  out  of  the  same  transactions 
upon  which  the  alleged  invalidity  of  the  will  is  based. 
{Best  V.  Zeh,  82  Hun,  232;  affd.  on  op.  below,  146  N.  Y. 
363). 

Sec.    6.    Parties  to  the  action. 

The  sections  of  the  code  specifying  who  must  and  who 
may  be  made  parties  in  an  action  for  partition  will  be 
found  quoted  in  volume  I,  at  page  170,  et  seq.  The 
whole  subject  of  parties  to  actions  has  been  thoroughly 
discussed  in  that  place,  and  it  will  be  unnecessary  to  go 
over  the  same  ground  her(\  The  people  of  the  State  may 
be  made  a  party  defendant  to  an  action  for  the  partition 
of  real  property,  in  the  same  manner  as  a  private  person. 
In  such  a  case,  the  summons  must  be  served  upon  the 


PARTITION.  43 

attorneY-<>eneral,  who  must  appear  in  behalf  of  the  peo- 
ple. (Co.  Civ.  Proc.  §  151)4).  The  importance  of  join- 
ing all  the  parties  who  have  any  interest  in  the  property 
becomes  apparent  when  a  sale  becomes  necessary;  as 
an  omission  to  join  necessary  parties  will  operate  to 
defeat  the  very  object  of  the  whole  proceedings,  by  fur- 
nishing the  purchaser  a  valid  reason  for  refusing  to  com- 
plete his  purchase.  {'Jordan  v.  PoiUon,  77  N.  Y.  518; 
Toole  V.  Toole,  112  N.  Y.  333).  It  is  proper  and  desira- 
ble to  make  every  person  a  defendant  who  has,  or  claims 
to  have,  a  lien  either  upon  the  entire  property  or  upon 
an  undivided  interest  therein.  {Bogardus  v.  Parker, 
7  How.  Pr.  305;  Townshend  v.  Townshend,  1  Abb.  N.  C. 
81)  ;  and  his  rights  can  be  determined  by  the  judgment 
in  the  action.  But  in  Barnard  v.  Onderdonk  (98  N.  Y: 
158)  the  court  declined  to  pass  upon  the  question 
whether,  without  the  mortgagee's  acquiescence,  a  parti- 
tion action  can  be  used  as  a  means  of  attack  upon  a 
mortgage  on  the  ground  that  its  enforcement  has  been 
barred  by  the  statute  of  limitations.  A  person  claiming 
in  hostility  to  the  plaintiff,  and  his  co-tenants  may  be 
made  a  party,  {^atterlee  v.  Kohhe,  173  N.  Y.  91;  Wal- 
lace V.  McEchron,  176  N.  Y".  424).  In  case  a  sale  in 
partition  is  had,  a  person  who  has  a  lien  appearing  of 
record  upon  an  undivided  interest  at  the  time  of  filing 
the  notice  of  pendency  of  action  is  not  affected  by  the 
judgment  unless  made  a  party.  Such  a  person  is  there- 
fore a  necessary  party.  (Co.  Civ.  Proc.  §  1578;  Win- 
field  V.  Htacom,  40  App.  Div.  95).  It  formerly  was  held 
that  the  wives  of  the  parties,  while  proper,  were  not 
necessary  parties  except  in  cases  where  a  sale  of  the 
property  was  required  {Ronekrans  v.  Rosekrans,  7  Lans. 
486 )  ;  and  that  a  widow  entitled  to  dower  in  the  whole 
property  was  not  a  necessary  party,  except  in  a  like 
case  (Tanner  v.  Niles,  1  Barb.  560)  ;  but  the  code  ex- 
pressly includes  them  among  those  who  must  be  joined. 
(Co.  Civ.  Proc.  §  1538). 

Where,  however,  actual  partition  is  made,  only  for 
the  purpose  of  dividing  the  estate,  certain  parties  who 
might  properly  be  joined,  need  not  be  made  parties;  but 
if  they  are  not  joined,  they  are  not  affected  by  the  judg- 


44  ,  I'UAciU'io. 

incut.  (Co.  Civ.  I'roc.  ^  ir);>!>).  So  in  a  case  wiioi'C 
actual  partition  was  made,  subject  to  a  right  of  dower, 
the  jndiiiueiit  was  uot  aUowed  to  be  disturbed  ou  motion 
of  the  wi(h)W,  as  her  rights  were  uot  affected  by  il. 
{Gordon  v.  Stcrli)ig,  13  How.  Pr.  405).  An  alien  heir, 
who  holds  as  tenant  in  common,  may  l)e  i)laintiff  in  the 
action  of  partition,  if  he  has  tiled  the  necessary  deposi- 
tion, declaring  his  intention  to  become  a  citizen  (Nolati 
V.  Cotnmuud,  11  Civ.  Proc.  Kep.  205)  ;  and  a  tenant  by 
the  curtesy  of  an  undivided  share  may  bring  the  action 
{TUton  \.  Tail,  25  N.  Y.  St.  Rep.  212;  42  Hun,  638)  ; 
but  not  where  he  is  tenant  by  the  curtesy  in  the  whole 
estate.  (Id.;  Reed  v.  Reed,  4G  Hun,  212;  affd.,  107  N. 
Y.  545).  Where  a  party  has  a  conflicting  or  adverse 
claim  he  cannot  l)e  joined  with  the  plaiutiff,  but  must 
be  made  a  defendant.  (Struppman  v.  Miiller^  52  How. 
Pr.  211).  And  those  who  have  parted  with  their  in- 
terest in  the  property,  are  not  proper  parties.  {Van- 
dcnccrher  v.  Y cnidericerker ,  7  Barb.  221).  Where  some 
of  the  parties  are  unknown,  the  requirements  of  the 
statute  as  to  notice  and  publication  must  be  complied 
with,  and  the  record  must  show  such  fact,  before  any 
steps  can  be  taken  to  determine  their  rights.  {Denning 
V.  Corwin,  11  Wend.  647;  Co.  Civ.  Proc.  §  1541).  An 
assignee  in  trust  for  creditors  becomes  a  tenant  in  com- 
mon with  the  other  tenants,  and  may  maintain  the 
action  of  partition  {Van  Arsdale  v.  Drake,  2  Barb.  599) ; 
so  also  a  dcnisee  of  a  life  estate  {Addey  v.  Djigcrt,  33 
Barb.  176)  ;  or  one  who  has  an  undivided  interest  in 
mines  with  power  to  go  upon  the  lands  and  work  them. 
(Can field  v.  Ford,  16  How.  Pr.  473;  affd.,  28  Barb.  336). 
If  the  action  was  brought  by  a  party,  not  a  tenant  in 
comuKm  or  a  joint  tenant,  but  who  had  an  interest  in 
the  property,  the  defect  is  not  jurisdictional,  and  if  re- 
lief was  granted  to  which  the  plaintiff  was  not  entitled, 
the  error  should  be  corrected  by  appeal  {Cromwell  v. 
JhilL  97  N.  Y.  209  )  ;  as  where  the  action  was  brought  by 
a  remainderman  [Vrlor  v.  Prior,  49  Hun,  502)  ;  and  the 
judgment  is  conclusive  upon  the  parties,  if  no  appeal  is 
taken.  {Reed  v.  Reed,  107  N.  Y.  545) .  The  fact  that  a 
tenant  is  also  a  trustee  for  part  of  the  other  tenants, 


PAUTITIOX.  4:5 

does  not  prevent  his  bringing  the  action,  ( Cheesman  v. 
TJiornv,  1  Edw.  629).  Where  hiis^band  and  wife  be- 
came tenants  by  the  entirety  prior  to  chapter  472  of 
Laws  of  1880,  a  deed  executed  by  the  wife  conveys  no 
title  and  her  grantee  cannot  maintain  partition. 
{Zorntleiu  v.  Liram,  100  N.  Y.  12,  reversing,  63  How. 
Pr.  240).  The  rule  is  otherwise  when  husband  and 
wife  hold  as  joint  tenants.  (Jooss  v.  Fei/,  129  N.  Y. 
17). 

If,  upon  the  death  of  one  of  two  or  more  plaintiffs, 
or  one  of  two  or  more  defendants,  in  an  action  for  par- 
tition, the  interest  of  the  decedent  in  tlie  property 
passed  to  a  person,  not  a  party  to  the  action,  the  latter 
may  be  made  defendant  by  the  order  of  the  court;  and 
a  supplemental  summons  may  be  issued,  to  bring  him  in 
accordingly.      (Co.  Civ.  Proc.  §  1588). 

The  action  may  be  maintained  by  the  heirs-at-law, 
within  the  time  allowed  for  the  proof  of  a  Avill,  unless 
there  is  reasonable  ground  for  believing  that  the  de- 
cedent left  a  will  (Spring  v.  Sand  ford,  7  Paige,  550)  ; 
and  the  same  case  holds  that  where  it  did  not  appear 
that  the  decedent  left  any  debts  which  could  not  be 
satisfied  out  of  the  personal  property,  the  partition 
might  be  had  within  the  three  years  allowed  for  credi- 
tors to  apply  to  the  surrogate  for  a  sale  of  the  real  estate 
to  pay  debts.  [Hulse  v.  HuUe,  23  N.  Y.  St.  Rep.  123). 
The  code  now  expressly  provides  that  if  the  action  is 
brought  within  three  years  after  letters  have  been  issued 
upon  the  estate  of  the  decedent  from  whom  plaintiff'  de- 
rives title,  the  executors  or  administrators,  if  any,  of 
such  decedent  shall  be  made  defendants;  and  that,  if 
it  is  brought  within  three  years  after  letters  have  been 
issued  upon  the  estate  of  any  deceased  person,  who,  if 
living,  should  be  a  party  to  the  action,  the  executors  or 
administrators,  if  any,  of  such  person,  shall  be  made 
defendants.  If  no  such  executors  or  administrators 
have  been  appointed,  that  fact  shall  be  alleged  in  the 
complaint.  (Co.  Civ.  Proc.  §  1538).  Section  1538, 
also,  provides  for  a  sale  in  partition  of  the  land  of  a 
decedent  free  from  the  claims  of  his  general  creditors, 
and  for  the  payment  of  the  avails  of  the  sale  into  court 


4()  PRACTICE. 

for  the  security  of  such  creditors,  iu  ease  thr  aclittu  is 
hrouj^ht  within  three  years  after  the  «!;raut  of  letters 
upou  the  estate  of  such  decedent.  As  to  abatement  of 
action  on  (k'ath  of  party  see  volume  I,  p.  807. 

Sec.    7.    Notice  of  pendency. 

As  the  action  of  partition  is  one  which  affects  the  title 
to  real  property,  the  notice  of  pendenc}'  of  action  is  re- 
quired ;  but  as  that  subject  has  been  fully  treated  of  in 
volume  I,  pp.  237,  241,  it  is  not  necessary  to  repeat  it 
here.  As  to  the  effect  of  an  omission  to  file  such  a  notice 
see  volume  I,  p.  241. 


ARTICLE  II. 

PROCEEDINGS    IN    THE   ACTION. 

SECTION. 

1.  The  complaint. 

2.  The  answer. 

3.  What  questions  may  be  raised. 

4.  How  issues  tried. 

5.  Proceedin<rs   upon   default. 

Sec.    1.    The  complaint. 

The  rwjuirements  of  the  code  as  to  what  shall  be 
stated  in  the  complaint,  are  given  in  volume  I,  at  pages 
396  and  401.  As  the  action  concerns  the  title  to  real 
property,  it  is  necessary  to  be  very  careful  in  following 
the  exact  requirements  of  the  statute.  The  proceedings 
being  statutory,  the  jurisdiction  of  the  court  is  confined 
to  the  subject  matter  set  forth  iu  the  complaint.  ( Cor- 
withe  V.  Griffing,  21  Barb.  9  ) .  The  rule  formerly  was 
that  the  plaintiff  must  allege  that  he  was  in  possession 
of  the  premises  or  some  part  thereof,  or  that  he  with 
other  parties  were  "  seized  in  common  "  of  the  property ; 
but  since  the  code  of  civil  procedure  took  effect,  as  we 
have  seen  in  section  two  of  the  preceding  article,  actual 
possession  is  not  necessarv  to  the  bringing  of  the  action ; 
and  it  is  not  necessary  to  allege  it;  but  the  facts  as  they 
exist  should  be  alleged  so  that  the  court  mav  ascertain 


PARTITION.  47 

the  exact  situation  of  the  parties.  All  lauds  held  iu 
coniuion  by  the  same  persons  must  be  partitioned  in  one 
action.  {Henderson  V.  Henderson,  44  Hun,  420). 
Where  infants  are  interested,  the  complaint  shall  state 
whether  or  not  the  parties  own  any  other  lands  in  com- 
mon. (Genl.  Rule,  65).  The  rule  just  cited,  however, 
was  not  intended  to  establish  a  rule  of  pleading;  but 
rather  to  prevent  multiplicity  of  suits,  and  also  to  in- 
form the  court,  when  disposing  of  the  question  of  costs. 
(Pritchard  V.  Dratt,  32  Hun,  417).  The  estate  of  each 
owner  must  be  stated;  but  where  several  owners  col- 
lectively have  shares,  the  extent  of  which  is  unknown  to 
the  plaintilf,  he  may  state  that  fact.  {Hyatt  v.  Pugs- 
ley,  23  Barb.  285,  303).  A  failure,  however,  to  state  in 
the  complaint  the  interests,  rights  or  shares  of  all  the 
parties,  which  might,  on  motion,  have  been  supplied  by 
way  of  an  amendment,  will  not  render  the  decree  ir- 
regular, so  as  to  defeat  the  title,  so  far  as  relates  to 
parties  to  the  action  or  those  taking  title  from  them 
{Nohlev.  Cromwell,  26  Barb.  475;  affd.,  3  Abb.  Ct.  App. 
Dec.  382) ;  but  where  such  omission  would  affect  the 
title  of  a  purchaser,  he  will  not  be  compelled  to  com- 
plete the  purchase  unless  the  judgment  is  amended  in 
that  respect.  (Id).  A  complaint  is  not  demurrable 
as  stating  no  cause  of  action  which  avers  that  certain 
defendants  claim  some  right,  title  or  interest  in  the 
premises  which  is  unknown  to  plaintiff  and  is  a  cloud 
upon  the  title  of  the  premises.  {Townsend  v.  Bogert, 
126  N.  Y.  370).  If  in  the  action  the  plaintiff  seeks  to 
recover  rents  and  profits,  the  facts  entitling  him  to  such 
profits  must  be  pleaded  or  they  cannot  be  recovered, 
especially  in  case  of  a  default.  {Bulhvinker  v.  Ryker, 
12  Abb.  Pr.  311).  Where  one  of  the  owners  has  made 
advances  on  account  of  the  property,  it  is  proper  to 
allege  that  fact  in  the  complaint,  and  ask  that  the  rights 
of  such  party  by  reason  thereof  be  adjudicated  upon 
{Bogardus  v.  Parker,  7  How.  Pr.  305)  ;  and  the  com- 
plaint will  not  be  demurrable  for  misjoinder  by  reason 
of  such  allegation.  (Id).  As  to  general  regulations 
regarding  pleadings  and  the  complaint,  see  volume  I, 
chapters  IX  and  X. 


48  PRACTICE. 

Sec.    2.    The   ansvrer. 

The  title  or  interest  of  the  plaintiff  in  the  property,  as 
stated  in  the  complaint,  may  he  controverted  hy  the  an- 
swer. The  title  or  interest  of  any  defendant  in  the  prop- 
erty, as  stated  in  the  complaint,  may  also  he  contro- 
vertiil  by  his  answer,  or  the  answer  of  any  other  de- 
fendant; and  the  title  or  interest  of  any  defendant,  as 
stat«i  in  his  answer,  may  be  controverted  by  the  answer 
of  any  other  defen<lant.  A  defendant,  thns  controvert- 
ing the  title  or  interest  of  a  co-defendant,  must  comply 
with  section  521  of  the  code.  The  issues,  joined  as  pre- 
scribed in  this  section,  must  be  tried  and  determined  in 
the  action.      (Co.  Civ.  Troc.  §  1543). 

As  has  been  shown  by  section  two  of  the  preceding 
article,  the  action  of  partition  is  extended  so  as  to  allow 
the  title  to  be  tried,  as  well  as  the  mere  question  of  ten- 
ancy. Under  this  section  the  titles  of  the  various  par- 
ties to  the  realty  may  be  disputed  and  determined. 
{Shannon  v.  IHckell,  2*  N.  Y.  St.  Rep.  160).  All  those 
rulings  which  held  to  the  contrary  were  superseded  by 
the  provisions  of  the  section  above  quoted.  ( Weston  v. 
>itoddiird,  137  N.  Y.  119;  HaUerlee  v.  Kohhe,  173  N.  Y. 
91 ;  M'uUace  v.  MclJchron,  176  N.  Y.  424) .  The  general 
rules  of  pleading  apply  to  the  answer  in  partition;  so 
that  if  special  statutory  defenses  are  to  be  relied  on, 
they  must  be  pleaded.  {Barnard  v.  Ondcrdonk,  11  Abb. 
N.  C.  349;  affd.,  98  N.  Y.  158).  See  chapter  XI,  in 
volume  I,  for  the  rules  with  reference  to  the  answer,  its 
form,  denials,  new  matter,  etc. 

Sec.    3.    VHiat  questions  may  be  raised. 

As  has  quite  fully  appeared  by  the  previous  section, 
and  by  section  two  of  the  preceding  article,  not  only  the 
question  of  the  tenancy,  joint  or  in  common,  may  be 
raised  and  determined,  but  the  entire  question  of  title 
may  be  put  in  controversy,  and  that  is  true  whether  the 
controversy  is  between  the  plaintiff  and  the  defendants, 
or  whether  it  is  between  different  defendants;  as  one 
defendant  may  controvert  the  title  of  his  co-defendant; 
but  one  plaintiff  cannot  controvert  the  title  of  his  co- 


PARTITIOX.  49 

plaintiff,  as  he  caunot  join  with  him  one  having  conflict- 
ing chiinis.  {Hiruppuian  v.  Miiller,  52  How,  Pr.  211). 
An  heir  nia}"  controvert  the  title  of  one  holding  under  a 
devise,  if  he  alleges  the  devise  to  be  void.  (See  §  5  of 
the  preceding  article).  The  claim  of  a  creditor  may  be 
tried  in  the  action  of  partition,  and  his  rights  deter- 
mined (Co.  Civ.  Proc.  §  1540),  and  all  questions  affect- 
ing the  real  property,  as  dower,  curtesy,  liens,  life  or 
other  particular  estates,  are  specifically  declared  by  the 
code  to  be  proper  subjects  for  adjudication  in  the  action. 
(Co.  Civ.  Proc.  §  1539).  The  most  important  change 
which  the  code  made  in  the  action  of  partition  was  that 
by  which  the  question  of  title  might  be  tried  and  de- 
termined in  it.  Formerly,  if  the  question  of  title  arose, 
the  action  had  to  go  down,  to  await  the  determination 
of  that  question  elsewhere;  but  not  so  now.  Adhere 
some  of  the  parties  are  tenants  in  common  of  lands  in 
different  counties,  but  are  not  tenants  in  common  with 
certain  other  parties,  the  questions  cannot  be  deter- 
mined in  one  action;  as  the  rights  of  parties  cannot  be 
determined  in  an  action  in  which  they  have  no  interest 
in  common  with  some  of  the  other  parties.  {Mayor  v. 
Coffin,  90  N.  Y.  312).  Where  some  of  the  lands  are 
situated  in  another  state,  but  the  parties  agree  to  make 
partition  in  this  state,  they  will  not  be  allowed  to  ques- 
tion the  jurisdiction  of  the  court.  (Bowers  v.  Duraut, 
43  Hun,  348).  The  court  may  adjust  in  the  interlocu- 
tory or  final  judgment,  or  otherwise,  as  the  case  requires, 
the  rights  of  one  or  more  of  the  parties,  as  against  any 
other  party  or  parties,  by  reason  of  the  receipt,  by  the 
latter,  of  more  than  his  or  their  proper  proportion  of 
the  rents  or  profits  of  a  share,  or  part  of  a  share.  ( Co. 
Civ.  Proc.  §  1589).  Formerly  the  question  of  rents 
and  profits  was  not  thought  a  proper  subject  to  consider 
in  an  action  of  partition  {Burhans  v.  Biirhaiis,  2  Barb. 
Ch.  398,  410)  ;  but  in  keeping  with  the  extension  of  the 
action  itself,  that  rule  has  been  so  modified  that  if  a 
party  alleges  the  facts  entitling  himself  to  an  account- 
ing of  the  rents  and  profits,  especially  where  the  land 
has  been  held  adversely  to  him,  he  may  recover  them. 
4 


50  ritACTR'E. 

[.UcCahv  V.  McCahc,  18  IIuu,  153).  They  can  only  be 
recoveiTd,  on  defanit,  if  (Icniaudcd  in  the  conipiaint. 
{BuUtc'uiLrr  v.  h\i//:rr,  12  Abh.  Pr.  311).  The  conrt 
may  apixnnt  a  receiver  in  a  proper  ease;  and  with  the 
sanction  of  th(^  court  he  may  lease  the  property  and  col- 
lect the  rents  and  profits,  pendente  lite.  {Weeks  v. 
^Vccl•s,  10()  N.  Y.  G2G ;  see  also  volume  I,  p.  703 ) .  Where 
the  tenant  in  possession  has  made  necessary  imi)rove- 
ments,  if  he  claims  to  be  allowed  for  them  he  must  de- 
maud  them.  (Wu'Dimati  v.  IJamjdon,  110  N.  Y.  420). 
The  mere  fact  of  makini;-  improvements,  however,  does 
not  entitle  him  to  such  allowance  {^cott  V.  Guernsey, 
48  N.  Y.  lOG)  ;  they  should  be  reasonable  and  necessary. 
{Ford  V.  Knupp,  102  N.  Y.  135).  In  the  last  case  cited, 
the  court  says:  "  The  authorities  leave  us  at  liberty  to 
consider  whether  upon  the  facts  and  circumstances  of 
the  case,  the  improving  tenant  ought  to  be  protected; 
and  furnish  us  the  power  to  grant  the  protection,  if  it 
may  justly  be  demanded."  Such  improvements  as  are 
necessary  and  proper  may  be  set  off  against  a  demand 
for  rents  and  profits  Avhich  have  been  received  during 
the  possession  of  the  property  by  one  of  the  several 
tenants  {Jackson  v.  Loomis,  4  Cow.  168)  ;  biit  where 
such  a  claim  is  not  made,  it  w^ill  not  be  allowed.  {^Va^n- 
man  v.  Hampton,  110  N.  Y.  429).  In  a  proper  case  they 
may  be  paid  out  of  the  avails  of  the  sale  of  the  property. 
{Ryder  v.  Cohurn,  47  App.  Div.  185;  Eakin  v.  Knahe, 
31  Misc.  221).  A  distinction  however  must  be  made  be- 
tween repairs  and  improvements.  A  co-tenant  cannot 
be  "  improved  "  out  of  his  share  of  the  property.  ( Cos- 
griff  V.  Foss,  152  N.  Y.  112;  Chipp  v.  Hunter,  52  App. 
Div.  253).  As  against  a  claim  for  rents  in  partition, 
defendant  should  be  allow^ed  to  show  the  payment  of 
them  by  him,  as  guardian  in  socage,  for  plaintifif's  bene- 
fit during  plaintilf's  minority.  {Williams  v.  Clark,  82 
App.  Div.  199). 

Sec.    4.    Ho\ir  issues  tried. 

The  forming  and  trial  of  issues  having  been  fully  con- 
sidered in  volume  II  of  this  work,  at  pages  214  and  225, 


PARTITION.  51 

it  will  not  be  necessary  again  to  go  into  them.  It  is 
sufficient  here  simply  to  sa}'  that  the  issues  of  fact  in  an 
action  of  partition  arc  triable  by  jury;  and  unless  the 
court  directs  the  issues  to  be  stated  as  prescribed  in  sec- 
tion 970  of  the  code,  they  may  be  tried  upon  the  plead- 
ings. (Co.  Civ.  Proc.  §  1544).  Where  there  is  no  dis- 
pute between  the  various  parties  as  to  their  respective 
rights  and  interests,  the  court  may  order  a  reference  in- 
stead of  a  jury  trial.  (Broivii  v.  Brown,  52  Hun,  532). 
As  to  the  place  of  trial,  see  volume  II,  page  127.  As 
to  the  jurisdiction  of  the  court  to  try  the  issues,  see  sec- 
tion two,  subdivision  two,  of  the  preceding  article. 

Sec.    5.   Proceedings  upon  default. 

Subdivision  1. — Refeuence  to  Ascertain  Title. 

Where  a  defendant  has  made  default  in  appearing  or 
pleading,  or  where  a  party  is  an  infant,  the  court  must 
ascertain  the  rights,  shares,  and  interests  of  the  several 
parties  in  the  property,  by  a  reference  or  otherwise, 
before  interlocutory  judgment  is  rendered  in  the  action. 
(Co.  Civ.  Proc.  §  1545). 

Where  the  rights  and  interests  of  the  several  parties, 
as  stated  in  the  complaint,  are  not  denied  or  contro- 
verted, if  any  of  the  defendants  are  infants  or  absentees, 
or  unknown,  the  plaintiff,  on  an  affidavit  of  the  fact,  and 
notice  to  such  of  the  parties  as  have  appeared,  may  apply 
at  a  special  term  for  an  order  of  reference,  to  take  proof 
of  the  plaintiff's  title  and  interest  in  the  premises,  and 
of  the  several  matters  set  forth  in  the  complaint ;  and  to 
ascertain  and  report  the  rights  and  interests  of  the  sev- 
eral parties  in  the  premises,  and  an  abstract  of  the  con- 
veyance by  which  the  same  are  held.  Such  referee  shall, 
in  all  cases,  be  selected  by  the  court.      (Genl.  Rule  66). 

Where  the  plaintiff  makes  proof  by  affidavit  that  the 
defendants  have  made  default,  or  it  appearing  that  the 
defendants  or  some  of  them  are  infants,  it  is  the  usual 
practice  to  make  application  to  the  court  for  a  referee  to 
ascertain  the  title  as  provided  by  the  foregoing  section 
and  rule.    Where  the  plaintiff  deems  that  the  lands  are 


UL'  I'UArTICE. 

SO  situated  that  a  i)ai'titi()ii  of  Ihoni  cannot  be  made 
williout  urcat  itrcjudicc  to  the  owners,  he  should  also 
ask  that  tlic  rclVrce  be  iuslriictcd  to  ascertain  and  re- 
l)ort  as  to  that  fact.  The  duties  of  the  referee  being 
thus  defined  bv  the  order,  he  should  proceed,  as  on  any 
other  reference,  to  examine  into  the  questions  referred 
to  him.  lie  should  trace  the  title  back  to  the  common 
source  of  the  several  tenants  in  common,  (Hamilton 
V.  Morris,  7  Paii^e,  r>0).  The  proof  should  be  so  certain 
that  the  plaintiff  would  be  entitled  to  recover  if  the 
action  had  been  ejectment.  (Larkin  v.  Mann,  2  Paige, 
27).  On  such  a  reference  the  proceedings  are  the  same 
as  on  any  other  reference  to  ascertain  and  report  a 
specific  fact^  and  need  not  be  specified  here.  See  volume 
II,  pp.  410,  428,  437. 

Subdivision  2. — How  Liens  Ascertained. 

Before  an  intc^'locutory  judgment  for  the  sale  of  real 
property  is  rendered,  in  an  action  for  partition,  the 
court  must,  either  with  or  without  application  by  a 
party,  direct  a  reference,  to  ascertain  whether  there  is 
any  creditor,  not  a  party,  who  has  a  lien  on  the  un- 
divided share  or  interest  of  any  party.  But  the  court 
may  direct  or  dispense  with  such  a  reference,  in  its  dis- 
cretion, where  a  party  produces  a  search,  certified  by  the 
clerk,  or  by  the  clerk  and  register,  as  the  case  requires, 
of  the  county  where  the  property  is  situated;  and  it 
appears  therefrom,  and  by  the  affidavit,  if  any,  produced 
therewith,  that  there  is  no  such  outstanding  lien.  (Co. 
Civ.  Proc.  §  1561). 

Where  a  reference  is  directed,  as  prescribed  in  section 
1561  of  the  code,  the  referee  must  cause  a  notice  to  be 
published  once  in  each  week  for  six  successive  weeks,  in 
such  newspaper  published  in  the  county  wherein  the 
place  of  trial  is  designated  as  shall  be  designated  by  the 
court  directing  said  reference,  and  also  in  a  newspaper 
published  in  each  county,  wherein  the  property  is  situ- 
ated, requiring  each  person,  not  a  party  to  the  action, 
who,  at  the  date  of  the  order,  had  a  lien  upon  any  un- 


rAUTITION.  53 

divided  share  or  interest  in  the  property,  to  appear  be- 
fore tlie  referee,  at  a  sp( citied  place,  and  on  or  before  a 
specified  day,  to  prove  his  lien,  and  the  true  amount  due 
or  to  become  due  to  him  by  reason  thereof.  The  referee 
must  report  to  the  court,  with  all  convenient  speed,  the 
name  of  each  creditor,  whose  lien  is  satisfactorily 
proved  before  him,  the  nature  and  extent  of  the  lien,  the 
date  thereof,  and  the  amount  due  or  to  become  due  there- 
upon.     (Co.  Civ.  Proc.  §  1562). 

A  referee  is  authorized  under  these  sections  to  take 
proof  and  pass  upon  the  validity  of  a  mortgage  upon  an 
undivided  share  claimed  by  one  of  the  parties,  although 
that  question  is  not  raised  by  the  pleading-s.  { Hoisted 
V.  Halsted,  55  N.  Y.  442).  If  notice  is  given  to  general 
lienors  upon  an  undivided  interest,  they  are  bound  by 
the  report  of  the  referee  if  the  same  is  confirmed  with- 
out any  exception  from  them.  [Dunham  v.  Minard,  4 
Paige,  441). 

Where  the  referee  in  making  his  report  described  a 
wrong  lien,  and  found  against  it,  and  after  the  time  for 
proving  liens  had  expired,  the  mistake  was  discovered, 
the  creditor  was  allowed  to  come  in  and  prove  his  true 
claim,  upon  paying  the  costs  of  the  motion.  (Horton  v. 
Bushirk,  1  Barb.  421).  While,  as  we  have  seen  above, 
a  referee  may  find  the  facts  as  to  a  lien,  although  it  is 
not  raised  by  the  pleadings;  still  it  has  been  held  that 
he  is  so  bound  by  the  pleadings  that  he  cannot  find  the 
interests  of  the  parties  to  be  otherwise  than  as  stated 
and  admitted  in  the  pleadings.  {McAlcar  v.  DeUiney, 
19  Wk.  Dig.  252).  If  he  finds  the  facts  correctly,  but 
draws  wrong  conclusions,  the  court  will  correct  the  con- 
clusions, without  sending  the  report  back  to  the  referee. 
(Austin  V.  Ahearne,  01  N.  Y.  6). 

Where  the  referee  finds  that  an  actual  partition  can 
be  made,  and  such  report  is  confinned,  it  will  be  fol- 
lowed by  an  interlocutoin^  judgment,  declaring  so  far 
as  the  same  have  been  ascertained,  the  rights  of  all  the 
parties,  and  a  designation  of  commissioners  to  make 
the  partition,  which  will  be' spoken  of  in  articles  three 
and  four  of  this  chapter. 


54  I'KACTICI-]. 

It  lias  been  held  that  the  ivtVrce  ainjointcd  to  ascer- 
tain licus  lu'i'd  not  auui'X  to  his  ivjKU't  the  searclies  as  to 
title;  but  the  better  practice  is  to  annex  tlicni  (o  the  re- 
port; or  if  he  does  not,  he  should  state  that  lu'  caused  a 
search  to  be  nuub',  and  ^ive  the  name  and  nature  of  the 
incumbrances,  if  any.  {\oblc  v.  CroiinnU,  '1~  How. 
Pr.  289). 

It  is  the  better  practice  to  niak<'  all  lienors  parties  to 
the  action  and  thereby  avoid  the  expense  and  delay  of  an 
advert isenu'ut  for  liens.  Such  advertisement  is  only 
consti'uctive  notice  and  to  i^ive  it  ettect  as  such  it  must 
be  in  strict  compliance  with  the  statute.  {O'Gi'ady  v. 
O'dnnli/,  55  TTun,  40). 

Subdivision  3. — Proceedings  Where  Partition  Can- 
not I'.E  3IaDE. 

If  the  referee  a]>i>ointed  to  ascertain  liens  is  also 
din^cted  to  n  port  whether  or  not  actual  partition  can  be 
made,  and  he  reports  that  it  cannot  be  nmde  without 
great  prejudice  to  the  owners  of  the  property,  but  that  a 
sale  should  be  made,  it  becomes  apparent  at  once  that  it 
is  very  important  that  he  should  be  very  particular  and 
ex])licit  in  his  report  as  to  the  title;  because  as  a  sale 
will  usually  be  ordered  on  the  coming-  in  of  such  a  report 
and  its  confirmation,  and  as  a  purchaser  at  such  a  sale 
is  entitled  to  have  an  indefeasibh^  title  before  he  is  re- 
quired to  c()nii)lete  his  purchase,  the  report  should  state, 
or  the  search  annexed  to  it  should  show,  every  fact 
necessary  to  niake  the  title  perfect. 

The  report  of  the  n  feree  that  actual  partition  cannot 
be  made  without  great  prejudice  to  the  owners,  should 
not  merely  state  that  conclusion,  but  should  state  all  the 
essential  facts  which  are  the  basis  of  such  conclusion, 
so  that  the  court  may  be  informed  as  to  the  correctness 
and  justice  of  the  opinion  or  conclusion  of  the  referee. 
[Tucker  y.  Tnclrr,  10  Wend.  226). 

As  to  the  proccH^dings  for  the  confirmation  of  the  re- 
port of  a  referee  in  such  case,  see  volume  II,  p.  444. 
It  is  not  necessary  to  file  exceptions  to  the  report,  but 
u])on  motion  for  the  confirmation  of  the  same  and  the 


I'AUTITIUN.  55 

entry  of  interlocutory  jiulij;uieut  thereon,  parties  in  in- 
terest aj-e  entitled  to  appear  and  be  heard  in  opposition. 
(Winpthl  y.  i^tucom,  40  App.  Diy.  95).  The  proceed- 
ings Ayhere  a  sale  is  ordered,  will  be  found  in  article 
fiye  of  this  chapter. 


ARTICLE  III. 

INTERLOCUTORY   JUDGMENT. 

SECTION. 

1.  What  to  contain. 

2.  How  modified  or  changed. 

Sec.    1.    What  to  contain. 

After  all  the  proceedings  haye  been  had,  including  the 
trial  of  the  issues  raised  by  the  pleadings,  or  upon  proof 
of  the  default  of  the  defendants,  and  the  reference  as  to 
title,  the  court  by  interlocutory  judgment  must  declare 
what  is  the  right,  share,  or  interest  of  each  party  in  the 
property,  as  far  as  the  same  has  been  ascertained,  and 
must  determine  the  rights  of  the  parties  therein.  Where 
it  is  found,  by  the  verdict,  report,  or  decision,  or  where 
it  appears  to  the  court,  upon  an  application  for  judg- 
ment in  favor  of  the  plaintiff,  that  the  property,  or  any 
part  thereof,  is  so  circumstanced  that  a  partition  thereof 
cannot  be  made  without  gTcat  prejudice  to  the  owners, 
the  interlocutor}'  judgment,  except  as  otherwise  ex- 
pressly prescribed,  must  direct  that  the  property,  or  the 
part  thereof  which  is  so  circumstanced,  be  sold  at  public 
auction.  Otherwise,  an  interlocutory  judgment  in  favor 
of  the  plaintiff,  must  direct  that  partition  be  made  be- 
tween the  parties,  according  to  their  respective  rights, 
shares  and  interests.      (Co.  Civ.  Proc.  §  1546). 

Where  the  right,  share,  and  interest  of  a  party  has 
been  ascertained  and  determined,  and  the  rights,  shares, 
or  interests  of  the  other  parties,  as  between  themselves, 
remain  unascertained  or  undetermined,  the  interlocu- 
tory judgment  for  a  partition,  rendered  as  prescribed  in 
section  1546,  must  direct  a  partition,  as  between  the 
party  whose  share  has  been  so  determined  and  the  other 


50  I'UACTICE. 

parties  to  the  action.  WIrtl'  tlic  rijihts,  shares  aud  in- 
terests of  two  (»r  more  parties  liave  lu'cii  tlius  ascer- 
tained and  dt'tcrniincd,  the  interh)eut()ry  jnd<;iiieut  may 
also  direct  the  partition  anioni;  thcni  of  a  part  of  the 
property,  proportionate  to  their  a«^«^Tegate  shares.  In 
either  case,  the  court  may,  fi-om  time  to  time,  as  the 
otlur  rijj^hts,  shares,  and  interests  are  ascertained  and 
(hteniiined,  ren(h'r  an  interhx-utoi-y  jndjiinent,  direct- 
ing tile  partition,  in  lii-ce  manner,  of  tlie  remainder  of 
the  pntperty.      (Co.  Civ.  I'roc.  §  ir)47). 

As  will  be  seen  by  the  sections  just  quoted,  great  care 
should  l)e  taken  in  the  prei)aration  of  the  interlocutory 
judgment,  as  it  declares  the  rights,  titles  and  interests  of 
each  party,  and  determines  their  rights  in  the  property 
(Tagf/art  v.  H iirlhurt,  GO  Barb.  553)  ;  and  leaves  noth- 
ing open  or  reserved  except  mere  matters  of  detail  in 
carrying-  it  out.  (Id).  The  court  also  by  the  interlocu- 
tory judgment  determines  whether  the  property  shall  be 
actually  partitioned  or  sold.  The  rules  governing  the 
rights  of  the  parties  in  partition  are  the  same,  whether 
there  is  a  sale  or  an  actual  partition  ;  as  the  rights  of  the 
parties  in  the  proceeds  of  a  sale  are  the  same  as  they 
were  in  the  land.  {Warfield  v.  Crane,  4  Abb.  Ct.  App. 
Dec.  525).  Where  the  right,  share  or  interest  of  one 
or  more  of  the  parties  has  been  ascertained  and  deter- 
mined, but  as  to  the  other  parties  no  such  determination 
has  been  made,  the  court  may  direct  the  action  to  be 
severed,  and  final  judgment  to  be  rendered,  with  respect 
to  the  portion  of  the  property  set  apart  to  the  parties, 
whose  rights,  shares,  and  interests  are  determined,  leav- 
ing the  action  to  proceed  as  against  the  other  parties, 
with  respect  to  the  remainder  of  the^  property;  and,  if 
necessars^,  the  court  may  direct  that  one  of  those  parties 
be  substituted  as  plaintiff.      (Co.  Civ.  Proc.  §  1547). 

Where  two  or  more  parties,  to  an  action  for  partition, 
make  it  appear  to  the  court,  that  they  desire  to  enjoy 
their  shares  in  common  with  each  other,  the  interlocu- 
tory judgment  may,  in  the  discretion  of  the  court,  direct 
partition  to  be  so  made,  as  to  set  off  to  them  their  shares 
of  the  real  property  partitioned,  without  partition  as  be- 


PARTITION.   .  57 

tween  themselves,  to  be  held  by  them  in  common.  (Co. 
Civ.  Proc.  §  1548). 

Under  the  section  last  quoted,  one  party  may  have  his 
part  set  off  to  him,  while  that  of  the  others  is  sold,  if  the 
court  is  of  the  opinion  that  such  course  is  best  (Hajjirood 
V.  J ndson,  4  Barb.  228)  ;  and  where  the  parties  plaintiff 
have  interests  in  common  with  each  other,  and  the  par- 
ties defendant  have  like  interests  as  to  each  other,  the 
court  may  direct  that  the  property  be  divided  into  two 
parts,  one  part  to  be  set  apart  for  the  plaintiffs  and  the 
other  for  the  defendants ;  and  no  further  division  will  be 
made  where  it  is  not  required.  {^yalker  v.  Walker,  3 
Abb.  N.  C.  12).  Where  some  of  the  parties  desire  to 
hold  in  common,  without  partition  as  between  them- 
selves, such  division  should  be  made  before  the  final  de- 
cree is  made.      {Northrop  v.  Anderson,  8  How.  Pr.  351). 

Where  the  interlocutors^  judgment,  in  an  action  for 
partition,  directs  a  partition,  it  must  designate  three 
reputable  and  disinterested  freeholders  as  commission- 
ers, to  make  the  partition  so  directed.  (Co.  Civ.  Proc. 
§  1549). 

It  is  the  duty  of  the  court  to  make  the  designation  of 
the  commissioners;  but  if  the  parties  agree  upon  three 
proper  persons  the  court  will  designate  them ;  and  when 
the  designation  of  commissioners  has  been  made  upon 
the  selection  of  the  parties,  their  report  is  regarded  with 
even  more  respect  than  the  verdict  of  a  jury;  and  will 
not  be  set  aside,  unless  for  very  good  cause.  (Livings- 
ton v.  Clarkson,  4  Edw.  Ch.  596). 

Where  the  interlocutory  judgment  directs  a  sale  of  the 
property,  the  court  must,  in  such  judgment,  direct  the 
terms  of  credit  to  be  given  at  such  sale,  if  any;  it  must 
also  direct  the  terms  of  the  credit  which  may  be  allowed 
for  any  portion  of  the  purchase  money,  of  which  it  thinks 
proper  to  direct  the  investment,  and  for  any  portion  of 
the  purchase-money,  which  is  required  to  be  invested 
for  the  benefit  of  a  person,  as  prescribed  in  the  article 
of  the  code  dealing  with  partition.  (Co.  Civ.  Proc. 
§1573). 

The  persons  referred  to  in  the  section  just  quoted,  for 
whose  benefit  such  investment  is  to  be  made,  are  infants, 


58  PRACTICE. 

unknown  ownors,  ]iarli('s  (.ni  of  ilic  stnto,  tenants  for 
life  or  ycai's,  l»v  the  cnilcsy  or  in  dower.  ((\>.  ('i\'. 
l*roc.  §  ir)Sl,  (7  .sr<j). 

If  it  apiu'ars  by  the  pleadinji's,  or  l»y  ilic  evidence  in 
the  action,  or  by  (he  rejKtrt,  that  there  was,  at  the  date 
of  the  onler,  any  exist inji  lien  upon  the  share  or  interest 
of  a  party  in  the  i)roperty,  the  interh»(utorv  jndj>inent, 
directing-  the  sale,  must  also  direct  the  olticer  making  it 
to  ])ay  into  court  the  portion  of  the  money,  arising  from 
the  sale  of  the  share  (tr  interest  of  that  party,  after  de- 
ducting the  portion  of  the  costs  and  expenses  for  which 
it  is  liable.       (To.  CM  v.  Proc.  §  l'i(u\). 

Section  15()3  manifestly  refers  to  the  case  of  a  lien  in 
favor  of  on(^  who  was  not  made  a  party  to  the  action. 

As  to  the  manner  of  a])plying  for  such  money,  so  paid 
into  court,  see  article  \',  section  5,  uifni. 

The  court  has  authority  at  all  times  to  correct  or  mod- 
ify the  interlocutory  judgment,  as  will  be  seen  by  the 
next  section.  The  moving  party  should  enter  the  judg- 
ment like  any  other  judgment,  and  serve  a  copy  upon 
the  adverse  parties.  If  any  party  feels  himself  ag- 
grieved b^'  such  judgment,  he  may  appeal  therefrom; 
but  such  an  appeal  cannot  be  taken  to  the  court  of  ap- 
peals. {Bcehr  v.  Gnffing,  6  X.  Y.  4G.5;  TUton  v.  Tail, 
117  X.  Y.  520).  When  the  interlocutory  judgment 
directs  a  sale  of  the  premises  or  some  part  thereof,  it 
may,  in  the  discretion  of  the  court,  direct  that  the  prem- 
ises so  sold  be  free  from  the  lien  of  every  debt  of  a  de- 
cedent from  whom  i)laintilf  derives  title  and  of  every 
debt  of  a  decedent  who,  if  living,  should  be  a  party  to 
the  action,  except  debts  which  were  a  lien  upon  the 
premises  before  the  death  of  such  decedent  or  decedents. 
(Co.  Civ.  Proc.  §  1538).  In  case  such  a  direction  is 
given  and  the  action  is  brought  within  three  ycai's  after 
letters  are  issued  upon  the  estate  of  such  decedent,  the 
avails  of  the  sale  of  the  proi)erty  or  interest  which  be- 
longed to  such  decedent  must  be  paid  into  court  as 
stated  in  section  5  of  article  V  of  this  chapter. 


PAllTITION.  59 

Sec.    2.    Hoxtr  modified  or  changed. 

From  time  to  time  as  the  action  proceeds  and  the  in- 
terests or  rights  of  parties  re<inire,  tiie  court  may  modify 
the  interlocutory  judgment.  Where  an  interlocutory 
judgment  was  entered  directing  a  sale  and  the  payment 
of  a  gross  sum  to  a  life  tenant,  and  such  life  tenant  died 
before  the  sale,  th(^  judgment  was  properly  modified  by 
striking  out  the  provision  in  reference  to  the  life  estate. 
{Mingo  1/  v.  Lackey,  142  N.  Y.  499).  If  the  commis- 
sioners or  a  nmjority  of  them,  report  that  the  property, 
or  a  particular  lot,  tract,  or  other  portion  thereof,  is  so 
circumstanced,  that  a  partition  thereof  cannot  be  made, 
without  great  prejudice  to  the  owners  thereof,  the  court, 
if  it  is  satisfied  that  the  report  is  just  and  correct,  may 
thereupon,  except  as  otherwise  expressly'  prescribed, 
modify  the  interlocutory  judgment,  or  render  a  supple- 
mental interlocutory  judgment,  reciting  the  facts,  and 
directing  that  the  property,  or  the  distinct  parcel  thereof 
so  circumstanced,  be  sold  by  a  referee,  designated  in  the 
judgment,  or  by  the  sheriff.      ( Co.  Civ.  Proc.  §  1560 ) . 

As  to  the  proceedings  where  a  sale  is  ordered,  see 
article  V,  infra. 


ARTICLE  IV. 

COMMLSSIONERS    TO    MAKE    PARTITION. 
SECTION. 

1.  How  qualified  and  removed. 

2.  How  to  proceed. 

3.  Proceedings  where  there  is  a  particular  estate. 

4.  Report  of  commissioners. 

Sec.    1.    How   qualified   and  removed. 

As  we  have  seen  in  the  last  article,  the  court  by  inter- 
locutory judgment  designates  three  reputable  and  disin- 
terested freeholders  as  commissioners  to  make  the  parti- 
tion directed  by  such,  judgment.  (Co.  Civ.  Proc.  § 
1549).  Before  entering  upon  the  discharge  of  their 
duties,  each  of  the  commissioners  must  subscribe  and 
take  an  oath  before  an  officer  specified  in  section  842 
of  the  code,  to  the  effect  that  he  will  faithfully,  honestly, 


60  rUACTlCE. 

and  iiiipai't ially  (lis(liai'j;e  the  triisl  reposed  in  liini. 
Each  ((ininiissioner's  oath  must  be  tih-d  with  the  clerk, 
before  he  enters  ii]»<)n  (lie  execution  of  his  duties.  The 
court  nuiy,  at  any  lime,  remove  either  of  the  eommis- 
sionei*s.  If  eithi'r  of  them  dies,  resij;ns,  ne<j;lects  or  re- 
fuses to  serve,  or  is  removed,  the  court  nuiy,  from  time 
to  time,  by  order,  a])])oint  another  person  in  his  i)lace, 
(Co.  Civ.  Vroc.  §  ITmUj. 

Sec.    2.    Hovir  to  proceed. 

The  commissioners  are  entirely  subject  to  the  direc- 
tion and  control  of  the  court;  and  their  duty  consists 
first  of  ascertainiufi  whether  or  not  partition  can  be 
made;  and  if  they  find  that  it  cannot  he  made  without 
great  prejudice  to  the  owners,  they  must  report  that  fact 
in  writing-  to  the  court  (Co.  Civ.  Proc.  §  1551)  ;  but  if 
actual  partition  can  be  made,  then  they  must  proceed  to 
make  the  partition  as  directed  by  the  interlocutory  judg- 
ment. (Id).  The  commissioncTs  have  nothing  to  do 
with  a  sale  of  the  i)roperty,  in  case  actual  partition  can- 
not be  made;  such  a  sale  is  made  either  by  the  sheriff  or 
by  a  referee  appointed  for  that  purpose.  (Co.  Civ. 
Proc.  §  1560). 

The  commissioners  must  forthwith  proceed  to  make 
partition,  as  directed  by  the  interlocutory  judgment,  un- 
less it  appears  to  them,  or  a  majority  of  them,  that  par- 
tition thereof,  or  of  a  particular  lot,  tract,  or  other  por- 
tion then'of,  cannot  be  nmde,  without  great  prejudice 
to  the  owners;  in  which  case,  they  must  make  a  written 
report  of  that  fact  to  the  court.     (Co.  Civ.  Proc.  §  1551). 

All  the  commissioners  must  meet  together  in  the  per- 
formance of  any  of  their  duties;  but  the  acts  of  a  ma- 
jority so  met  are  valid.      (Co.  Civ.  Proc.  §  1554). 

In  making  the  ])artition,  the  commissioners  must 
divide  the  property  into  distinct  parcels,  and  allot  the 
several  parcels  thereof  to  the  respective  parties,  quality 
and  quantity  being  relatively  considered,  according  to 
the  respective  rights  and  interest  of  the  parties,  as  fixed 
by  the  interlocutory  judgment.  They  must  designate 
the  sineral  parcels  by  posts,  stones,  or  other  permanent 
monuments.      They  may  employ  a  suiweyor,  with  the 


PARTITION.  61 

necessary  assistants,  to  aid  tlieni  in  so  doing.  (Co.  Civ. 
Proc.  §  1552). 

The  commissioners  can  only  make  tlie  partition  or- 
dered by  the  interlocntory  judgment.  If  they  include 
in  their  partition  lands  not  described  in  the  proceed- 
ings, their  action  is  void.  {Concithe  v.  Griffing,  21 
Barb.  9).  A  final  judgment  based  on  such  a  report  is 
also  void.      (Id). 

While  it  is  not  absolutely  necessary  that  the  commis- 
sioners notify  all  the  parties  interested  in  the  proceed- 
ings of  the  time  and  place  where  they  will  meet  for  the 
purpose  of  carrying  out  the^  directions  of  the  interlocu- 
tory judgment  (Roir  v.  Roir,  1  How.  Pr.  133)  ;  still  a 
notice  should  always  be  given.  {Doublcdaij  v.  Xru-ton, 
9  How.  Pr.  71).  If  all  the  parties  are  present  the  notice 
would  only  be  a  matter  of  form.  The  duty  of  the  com- 
missioners is  ministerial ;  and  their  action  is  limited  to 
the  directions  contained  in  the  judgment;  but  in  carry- 
ing out  the  directions,  they  should  use  their  best  judg- 
ment so  that  the  division  may  be  fair  and  equitable  be- 
tween the  parties.  They  should  make  such  a  division 
of  the  premises  as  will  preserve  their  use  as  far  as  possi- 
ble, either  by  a  direction  as  to  their  use,  as  in  case  of  a 
water-power  {^^mith  v.  aS//(/7//.  10  Paige,  170)  ;  or  by  a 
division  preserving  rooms  in  the  most  convenient  suites 
(Vail  V.  yail,  52  Hun,  520;  appeal  dismissed,  117  N.  Y. 
621)  ;  or  where  such  an  equality  cannot  easily  or  readily 
be  made,  then  by  requiring  a  money  payment  from  one 
to  the  other  to  equalize  the  shares  {Larlxiu  v.  Mann,  2 
Paige,  27)  ;  and  the  court  will  not  interfere  unless  it 
appears  that  the  power  has  been  abused  or  exercised  un- 
justly. {Post  V.  Post,  65  Barb.  192).  Where  several 
of  the  tenants  in  common  desire  to  hold  and  enjoy  their 
shares  in  common,  the  commissioners,  if  so  directed  by 
the  interlocutory  judgment,  may  set  off  to  them  their 
shares,  and  make  partition  as  to  the  rest.  (Co.  Civ. 
Proc.  §  1548).  So  too,  in  a  proper  case,  they  may  set 
apart  a  portion  of  the  premises,  and  sell  the  residue. 
{Haywood  v.  Jiidson,  4  Barb.  228).  Or  they  may  divide 
the  property  into  two  parts,  where  the  parties  so  desire, 
awarding  one  part  to  the  plaintiffs  in  common  and  the 


62  I'ltAcru"!!:. 

other  to  the  (leieiuhmts  iu  like  manuer.       {  WdlUr  V. 
^V alter,  'S  \hh.  X.  C.  V2). 

Sec.    3.    Proceedings  \irhere  there  is  a  particular  estate. 

Wlicic  a  parlv  lias  a  riiilit  of  dowci-  in  the  itrojtcrty, 
or  a  part  tlu'reol",  whicli  liis  not  been  adiiicasure*!,  or  has 
an  estate  by  the  enrtesy,  for  life,  or  for  years,  iu  an  un- 
divided share  of  the  pr<)pert3',  the.  coniniissioners  may 
allot  to  that  party,  his  or  her  share  of  the  property,  with- 
t)ut  reference  to  the  duration  of  the  estate.  And  they 
ma}'  make  partition  of  the  share,  so  allotted  to  that 
party,  among-  the  parties,  who  are  entitled  to  the  re- 
mainder  or  reversion  thereof,  to  be  enjoyed  by  them 
ui)on  the  determination  of  the  particular  estate,  where, 
in  the  oi)inion  of  the  commissioners,  such  a  partition 
can  be  made  without  prejudice  to  the  rights  of  the  i)ar- 
ties.  (Co.  (Mv.  Proc.  §  1553).  As  to  the  riiihts  of 
dower,  and  the  proceedings  for  their  admeasurement 
see  chapter  51,  post. 

Sec.    4.    Report  of  commissioners. 

They,  or  a  majority  of  them,  must  make  a  full  report 
of  their  proceedings,  under  their  hands,  specifying 
therein  the  manner  in  which  they  have  discharged  their 
trust,  describing  the  property  dividwl,  and  the  share  or 
interest  iu  a  share,  allotted  to  each  party,  with  the 
quantity,  courses,  and  distances,  or  other  particular  de- 
scription of  each  share,  and  a  descri])tion  of  the  posts, 
stones,  or  other  monuments;  and  specifying  the  items 
of  their  charges.  Their  re])ort  must  be  acknowlwlged 
or  proved,  and  certified,  in  like  ]Manner  as  a  deed  to  be 
recorded,  and  must  be  tiled  iu  the  otiice  (tf  the  clerk. 
(Co.  Civ.  Proc.  §  1554). 

As  we  have  seen  in  section  two  of  this  article,  all  of 
the  comnnssioners  must  m<H^t  together  in  the  ])erform- 
ance  of  their  duties  (Scliiii/hr  v.  Marsh,  37  Barb.  350)  ; 
but  a  majority  of  them  may  act  when  they  are  so  met; 
so  where  the  report  is  not  signed  by  jill  of  the  commis- 
sioners, it  should  state  that  all  met,  and  give  the  reasons 
why  it  was  not  signed  by  all.  (Undcrhill  V.  Jackson, 
1  Barb.  Ch.  73).     Where  the  commissioners  have  been 


PARTITION.  63 

guilty  of  any  misconduct,  wliicli  would  be  sufficient,  in 
case  of  a  jury,  to  set  aside  a  yerdict,  it  will  be  ground 
for  setting  aside  the  report.  {Licingston  v.  Clarkson, 
4  Edw.  Ch.  596).  An  abuse  of  their  power  will  be 
ground  for  setting  aside  their  report.  {Post  V.  Post, 
65  Barb.  192). 

After  the  filing  of  their  report,  either  party  may  serve 
upon  the  other  a  notice  of  such  filing,  with  a  notice  of 
motion  to  confirm  the  report.  In  case  objection  is  made 
to  the  confirmation  of  the  report,  the  conclusion  of  the 
commissioners,  as  thus  expressed,  will  not  be  disturl)ed, 
saye  for  causes  which  would  allow  of  a  ncAy  trial  in  an 
action  before  a  jury.  The  courts  are  inclined  to  regard 
the  report  of  commissioners,  especially  where  chosen  by 
the  parties  in  interest,  with  more  respect  eyen  than  a 
verdict  of  a  jury.  {Livingston  v.  Clarkson,  supra; 
Matter  of  Pearl  St.,  19  Wend.  651). 

Their  report  is  an  instrument  which,  if  confirmed,  be- 
comes a  part  of  the  record  title  of  the  property  affected 
by*it,  and  it  is  important  that  it  be  carefully  and  accur- 
ately drawn,  and  that  it  give  accurately  the  description 
of  the  parcels  set  off  in  severalty  and  the  nature  of  the 
estates  if  less  than  a  fee,  and  the  items  of  their  expenses, 
including  any  amount  paid  to  a  surveyor.  The  report 
is  proved  like  a  deed ;  and  when  thus  formally  executed 
and  filed,  it  carries  with  it  the  Aveight,  at  least  of  the 
verdict  of  a  jury,  as  to  the  facts  or  conclusions  recited 
therein.  And  where  objection  is  made  to  its  confirma- 
tion, the  court  will  give  every  reasonable  intendment  in 
its  favor,  unless  it  is  apparent  that  the  commissioners 
exceeded  or  abused  their  powers.  The  court  must  con- 
firm or  set  aside  the  report,  and  may,  if  necessary,  ap- 
point new  commissioners,  who  must  proceed  as  directed 
in  the  article  of  the  code  on  partition.  (Co.  Civ.  Proc. 
§  1556). 


64  PKACTICE. 

ARTICLE  V. 

PROCEEDINGS   TO   SELL   REAL   PROPERTY. 

SECTION. 

1.  When  a  sale  will  be  oideied. 

2.  Judicial  sale,  how  made. 

3.  How  purchase  money  secured. 

4.  Costs    in    partition. 

5.  Distribution  of   proceeds. 

Sec.    1.    When  a  sale  ivill  be  ordered. 

As  lias  already  been  seen  in  this  chapter,  the  court 
may  order  a  sale  of  the  property  >vhere  it  appears  that  a 
partition  thereof  cannot  be  made  Avithout  great  preju- 
dice to  the  o^yuers,  That  is  the  general  rule;  but 
Ayhether  or  not  a  sale  Avill  be  ordered,  depends  on  the 
particular  facts  and  circumstances  of  each  case;  and  it 
will  be  useful  to  follo^v  out  to  some  extent  the  reasons 
\yhich,  ordinarily,  ^yill  be  regarded  by  the  court  as  suffi- 
cient to  warrant  a  sale  of  the  property,  instead  of  an 
actual  partition;  for  it  is  to  be  renuMubered,  the  courts 
favor  an  actual  partition  instead  of  a  sale,  Nvliere  it  can 
be  had,  because  it  preserves  the  nature  of  the  property. 
(3  Pom.  Eq.  Jur.  §  1390).  Formerly  a  sale  could  not 
be  had  in  any  case;  and  it  was  not  until  the  right  was 
given  by  statute  that  a  sale  could  be  ordered.  A  sale 
is  always  the  last  resort;  and  should  not  be  directed 
unless  the  court  is  convinced  that  an  actual  partition 
could  not  be  made  without  great  prejudice  to  the  owners, 
and  that  a  sale  will  be  much  more  to  their  advantage. 
It  was  not  until  1887  that  a  sale  could  be  ordered  in  an 
action  brought  by  remaindermen.  (Co.  Civ.  Proc.  § 
1533). 

As  we  have  seen  in  the  first  article  of  this  chapter, 
partition  is  a  matter  of  right,  and  the  parties  may  insist 
upon  there  being  either  an  actual  partition  or  a  sale; 
and  where  they  so  insist,  although  partition  in  any  form 
will  hit  more  to  the  prejudice  of  the  owners  than  the  use 
and  occupation  of  the  property  in  common,  yet  recog- 
nizing the  right  to  have  partition,  the  court  will  direct 


PAUTITIOX.  65 

actual  partition  rather  than  a  sale,  unless  it  is  clear 
that  the  injurious  result  of  such  partition  will  be  much 
greater  than  bv  a  sale.  [>imilli  v.  Sinith,  10  Paige, 
470).  The  ''  great  prejudice  "  which  wonUl  authorize  a 
sale,  means  to  all  the  ownc  rs,  and  not  to  a  part  only. 
{]'an  ArsdaJl  v.  Drake,  2  Barb.  599).  The  court  must 
take  all  the  facts  into  consideratiou,  and  the  circum- 
stances of  the  parties  and  their  interests,  before  ordering 
a  sale.  The  mere  fact  that  the  commissioners  report 
that  actual  partition  cannot  be  made  without  great  pre- 
judice, is  not  sufiQcient  to  warrant  the  court  in  ordering 
a  sale;  he  should  require  that  they  report  the  facts 
which  haTC  led  them  to  such  conclusion,  so  that  the 
court  may  see  that  their  conclusion  is  just,  and  to  enable, 
him  to  judge  as  to  the  propriety  of  ordering  a  sale;  as  it 
is  only  when  the  court  is  satisfied  that  the  report  is  just 
and  correct  that  it  will  make  such  order.  {Tucker  v. 
Tucker,  19  Wend.  220).  And  where  tliere  are  infant  or 
incompetent  parties,  the  court  will  be  zealous  in  scrutin- 
izing their  interests  before  ordering  a  sale.  {Walter  V. 
Walter,  3  Abb.  N.  C.  12).  It  was  held  in  Mtaier  v. 
Strupjnnau  (G  Abb.  N.  C  343)  that  under  the  revised 
statutes  a  sale  in  partition  could  not  had  of  an  infant's 
interest  in  real  property  contrary  to  the  provisions  of  a 
will  by  which  it  was  devised.  (See  Midler  v.  Naumann, 
85  App.  Div.  337).  But  under  the  code  the  prohibition 
applies  only  to  the  sale  of  an  infant's  real  property  in 
the  special  proceeding  for  such  purpose.  (Co.  Civ. 
Proc.  §  2357;  Liringston  v.  Liriuf/ston,  50  App.  Div. 
484;  affd.  without  op.,  100  X.  Y.  001).  It  may  be  said, 
however,  that  the  court  will  not  go  out  of  its  way  to  find 
reasons  why  a  sale  should  not  be  liad,  if  the  parties  them- 
selves do  not  object,  unless  there  are  parties  in  the  action 
whose  rights  are  particularly  under  its  care,  as  infants 
or  incompetent  persons;  but  where  there  are  no  such 
parties,  it  is  safe  to  say  that  the  court  will  in  all  cases 
order  a  sale,  where  the  commissioners  report  in  favor 
of  a  sale,  and  there  appears  to  be  no  objection  to  that 
course  by  the  parties  in  interest. 
5 


GO  ruAiTici:. 

Sec.    2.   Judicial  sale,  how  made. 

Subdivision  1. — Notice  of  Sale. 

While  it  is  not  iiitiiKkd  in  this  section  to  give  the 
rules  that  apply  to  eases  of  jiulieial  sale  under  fore- 
closure, or  dower,  but  only  those  which  apply  to  a  sale 
in  partition,  still  as  the  sales  in  those  three  cases  are  so 
nearly  governed  by  the  same  practice,  reference  in  both 
of  those  chapters  in  this  volume,  has  been  made  to  this 
section  for  the  general  practice  in  respect  to  judicial 
sales. 

Notice  must  be  given  as  prescribed  in  section  1434  of 
the  code  for  the  sale  of  real  j)roperty  by  virtue  of  an 
execution,  unless  the  property  is  situated  wholly  or 
partly  in  a  city  in  which  a  daily,  semi-weekly  or  tri- 
Avet^kly  newspaper  is  published,  and,  in  that  case,  by 
publishing  notice  of  the  sale  in  such  a  daily,  semi- 
weekly  or  tri-weekly  paper,  at  least  twice  in  each  week 
for  three  successive  weeks,  or  in  a  weekly  paper  pub- 
lished in  a  city,  once  in  each  of  the  six  w-eeks,  immedi- 
ately preceding  the  sale,  or  in  the  counties  of  New  York 
and  Kings  in  two  such  daily  papers.  (Co.  Civ.  Proc. 
§1678). 

The  sheriff  who  sells  real  property,  by  virtue  of  an 
execution,  must  previously  give  public  notice  of  the  time 
and  place  of  the  sale,  as  follows: 

1.  A  written  or  printed  notice  thereof  must  be  con- 
spicuously fastened  up,  at  least  forty-two  days  before 
the  sale,  in  three  public  places,  in  the  town  or  city  where 
the  sale  is  to  take  place,  and  also  in  three  public  places, 
in  the  town  or  city  where  the  property  is  situated,  if  the 
sale  is  to  take  place  in  another  town  or  city. 

2.  A  copy  of  the  notice  must  l)e  ])ublished  at  least  once 
in  each  of  the  six  weeks,  immediately  preceding  the  sale, 
in  a  newspaper  published  in  the  county,  or  published  in 
an  inc(iri)orated  village,  a  part  of  which  is  within  the 
county;  if  there  is  a  newspaper  published  in  such  county 
or  village;  or,  if  there  is  none,  in  the  newspaper  printed 
at  Albany,  in  which  legal  notices  are  required  to  lie  ])ub- 
lished.     (Co.  Civ.  Proc.  §  1434).     There  is  now  no  state 


PARTITION.  67 

paper  (see  Executive  l.aw,  §  74),  so  the  last  clause  of 
this  section  seems  nui»at()i*y.  A\'here  the  sale  was  di- 
rected to  be  advertised  three  weeks  instead  of  six,  but 
the  notice  was  in  fact  published  six  weeks,  it  was  held 
that  the  error  might  be  amended.  {Alvord  v.  Beach, 
5  Abb.  Pr.  451). 

The  rule  means  that  there  shall  forty-two  days  (ex- 
cept in  cities  having  a  daily  newspaper,  twenty-one 
days)  elapse  from  the  time  that  the  printed  notices  are 
posted  up  as  required  by  the  statute,  and  the  day  of  sale. 
The  publication  need  not  be  begun  on  such  first  day,  if 
the  first  publication  is  made  during  the  first  week. 
{Valentine  v.  McCue,  26  Llun,  456;  Wood  v.  Morehouse, 
45  N.  Y.  368).  The  requirement  being  that  the  notice 
shall  be  published  once  in  each  week,  means  any  time 
in  such  week.  Where  the  publication  has  been  once 
commenced,  it  is  not  necessary  to  begin  de  novo,  merely 
because  there  has  been  a  substitution  of  the  representa- 
tives in  the  place  of  the  plaintiff  who  has  died  since  the 
publication  began  as  the  rights  of  the  parties  are  not 
affected  by  such  substitution,  for  the  representatives 
stand  merely  in  the  place  of  the  plaintiff.  {Thwing  v. 
Thicing,  18  How.  Pr.  458).  1'he  same  may  be  said 
where  there  is  a  mere  modification  of  the  judgment, 
which  does  not  go  to  its  merits.  ( Id ) .  The  notice  need 
not  specify  the  terms  of  sale,  or  how  it  is  to  be  made, 
whether  in  parcels  or  otherwise,  although  it  may;  and  it 
is  a  matter  which  rests  largely  in  the  judgment  of  the 
officer  making  the  sale,  as  a  mere  matter  of  business, 
whether  or  not  the  notice  shall  give  any  such  details. 
(H  of  man  v.  Burke,  21  Hun,  580).  An  error  in  the 
notice  by  omitting  to  mention  all  the  lands  directed  to 
be  sold  will  not  render  the  sale  void.  {Woodhull  V. 
Little,  102 'S.Y.  165). 

In  each  notice,  specified  in  section  1434,  (he  real  prop- 
erty to  be  sold  must  be  described  with  common  cer- 
tainty, by  setting  forth  (he  name  of  the  township  or 
tract,  and  the  number  of  the  lot,  if  there  is  any,  or  by 
some  other  appropriate  description.  The  validity  of  a 
sale  is  not  affected  by  the  fact  that  the  property  sold 


G8  I'RACTRi:. 

is  part  only  of  tlic  property  advertised  to  be  sold.  (Co. 
Civ.  Proc.  §  1485). 

The  remedy  of  an  injured  party,  where  the  proper 
notice  has  not  been  given  as  required  by  the  statute,  is 
to  move  to  set  aside  the  report  of  sale,  and  to  file  ob- 
jections to  it  on  that  ground. 

Where  there  has  been  a  postponement  of  the  sale  the 
notice  of  such  postponement  must  be  published  in  the 
paper  or  papers  wherein  the  notice  of  sale  was  published. 
(Co.  Civ.  I'roc.  §  1078).  As  to  the  postponement  of  sale 
see  subdivision  3  of  this  section. 

Subdivision  2. — Duties  ol'  Kicfeim:!':  of  Officeu  Making 

Sale. 

We  have  just  seen  that  it  is  the  first  duty  of  the  officer 
making  the  sale  to  post  and  publish  the  proper  notice  of 
sale,  and  to  publish  notice  of  any  postponement  thereof. 
His  duty  as  to  the  sale  is  ministerial,  and  he  cannot  go 
beyond  the  powers  conferred  on  him  by  the  order  under 
which  he  acts,  nor  can  he  vary  the  judgment  as  to  the 
terms  of  the  sale,  or  in  any  material  particular.  ( People 
V.  Bergen,  53  N.  Y.  404;  15  Abb.  Pr.  N.  S.  97).  If  such 
officer  does  not  obey  the  directions  contained  in  the  judg- 
ment, he  may  be  punished  for  contempt.  (Id).  If  he 
thinks  it  would  be  to  the  advantage  of  the  parties  inter- 
ested to  conduct  the  sale  in  a  manner  different  from  that 
specified  in  the  judgment,  he  should  apply  to  the  court 
for  directions,  and  not  act  upon  his  own  opinion.  He  is 
always  at  liberty  to  ask  the  court  for  instructions  where 
he  has  any  doubt  as  to  his  duty  in  any  particular. 
(East on  v.  PickersrjUl,  55  N.  Y.  330).  He  has  no  power, 
without  authority  from  the  court  to  correct  an  erroneous 
description  of  the  premises.  (Heller  v.  Cohen,  15  Misc. 
378;  154  N.  Y.  299).  It  is  usual  to  leave  to  the  judg- 
ment of  the  referee  whether  or  not  the  lands  shall  be 
sold  in  parcels.  His  action  is  subject,  however,  to  the 
approval  of  the  court.  (Underhill  v.  Vnderliill,  4  N.  Y. 
St.  Rep.  858;  affd.  without  op.,  113  N.  Y.  666).  W^iere 
the  officer  was  directed  simply  to  sell  the  property,  and 


I'AKTlTlOxV.  69 

not  to  ascertain  prior  incumbrances  or  pay  them,  his 
disregard  of  such  directions  will  be  ground  for  setting 
aside  his  report.  {Day  v.  Johnson,  5  Wk.  Dig.  237). 
Where  the  premises  are  directed  to  be  sold  subject  to  a 
prior  mortgage,  the  referee  was  not  allowed  to  ascertain 
the  amount  of  such  mortgage  and  pay  it.  (Bache  v. 
Doscher,  67  N.  Y.  429).  The  officer  conducting  the  sale 
cannot  delegate  his  power  to  a  third  person  (Heyer  v. 
Dcavcs,  2  Johns.  Ch.  154)  ;  as  by  suffering  the  plaintiff's 
attorney  to  conduct  the  sale  and  receive  and  dispose  of 
the  moneys  arising  therefrom.  If  he  does  so,  it  is  clearly 
a  breach  of  his  duty.  [Van  Tassel  V.  Van  Tassel,  31 
Barb.  439 ) .  The  court  in  such  a  case  will  hold  the  offi- 
cer to  a  strict  accountability.  (Id).  It  is  the  duty  of 
the  officer  to  conduct  the  sale  in  such  a  manner  and  at 
such  times  as  will  be  fair  and  equitable  to  all  the  par- 
ties. (American  Ins.  Co.  v.  Oakley,  9  Paige,  259).  If 
the  officer  does  not  proceed  with  due  diligence  in  bring- 
ing on  the  sale,  any  party  interested  in  having  the  prem- 
ises sold  ma^^  apply  to  the  court  to  direct  the  sale  to  be 
had.      {Kelly  v.  Israel,  11  Paige,  147). 

The  referee  has  power  to  adjourn  the  sale  from  time 
to  time  if  in  his  discretion  he  tjiinks  there  is  good  reason 
for  so  doing.      {King  v.  Piatt,  37  N.  Y.  155). 

Subdivision  3. — Sale, 

Except  where  special  provision  is  otherwise  made  by 
law,  real  property,  adjudged  to  be  sold,  must  be  sold 
in  the  county  where  it  is  situated,  by  the  sheriff  of  the 
county  where  it  is  situated  or  by  a  referee  appointed  by 
the  court  for  that  purpose.      ( Co.  Civ.  Proc.  §  1242 ) . 

The  statute  rec^uires  that  the  sale  must  be  made  at 
public  auction  and  to  the  highest  bidder.  The  terms  of 
sale  must  be  made  known  at  the  sale,  and  if  the  prop- 
erty, or  any  part  thereof,  is  to  be  sold  subject  to  the 
right  of  dower,  charge  or  lien,  that  fact  must  be  de- 
clared at  the  time  of  the  sale.  If  the  property  consists 
of  two  or  more  distinct  building's,  farms  or  lots  they 
shall  be  sold  separately,  unless  otherwise  ordered  by  the 


7(1  ruA(  ricK. 

coni't;  aud  i)i'()vi(U'(l  furllu'i'  that  wluTo  two  or  iiioro 
buildinus  are  situated  ou  the  same  eity  lot  thev  he  sohl 
together.       (Co.  Civ.  Proe.  §  WIS). 

The  sale  must  he  at  ])uhlic  auetiou  hetwetm  the  lumr 
of  uiiie  o'clock  in  the  morning  and  sunset.  (Co.  Civ. 
Proc.  |1384). 

In  the  counties  of  New  York  and  Kings  such  a  sale 
shall  be  had  between  eleven  o'clock  in  the  forenoon  and 
three  o'clock  in  the  afternoon,  unlesvS  otherwise  speci- 
ally directed;  aud  unless  otherwise  directed  in  the  city 
of  New  York  such  sale  shall  be  at  the  Exchange  Sales 
Kooms,  now  located  at  No.  Ill  Broadway  in  said  city; 
but  such  sales  shall  be  subject  to  such  regulations  as 
the  appellate  division  in  the  lii'st  department  may  estab- 
lish as  to  place,  rules,  auctioneers,  etc.  In  the  city  of 
Buffalo  such  sales  shall  take  place  at  the  Keal  Estate 
Exchange  Ixooms  between  the  houi*s  of  nine  and  eleven 
in  the  forenoon  aud  two  and  three  in  the  afternoon,  un- 
less the  ccmrt  shall  otherwise  direct;  subject,  however, 
to  such  regulations  as  the  justices  of  the  eighth  district 
shall  establish.  (Cenl.  Kule,  62).  At  present,  such 
sales  are  temporarily  held  in  New  York,  at  161  Broad- 
way. In  other  counties,  the  sale  is  usually  held  at  the 
front  door  of  the  court  house;  but  it  may  be  held  on  the 
proix'rty,  or  at  such  place  as  the  court  directs.  It 
should  be  at  such  a  reasonable  hour  as  to  allow  of  the 
usual  competition  at  the  bidding.  The  court  may  in 
all  cases  direct  a  separate  sale  of  distinct  parcels,  as 
buildings,  houses  or  lots.  (Reijnokls  v.  Telfair,  5  Law 
Bull.  21). 

Where  the  judgment  directs  the  sale  to  be  made  in 
parcels,  but  the  referee  sells  in  gross,  the  sale  is  irregular 
and  voidable;  but  it  is  not  absolutely  void;  and  if  a 
party  feels  injured  l)y  such  disregard  of  the  terms  of  the 
judgment,  his  remedy  is  by  a  motion  on  that  ground  to 
set  aside  the  sale;  if,  however,  he  does  not  make  such 
motion  within  a  reasonable  time,  he  will  be  deemed  to 
have  acquiesced  in  the  sale.  (Cnnniuf/ham  v.  Cd.ssidi/, 
17  N.  Y.  276;  McLaughlin  v.  Teasdale,  9  Daly,  23). 
Where  a  party  desires  that  the  land  should  be  sold  in 
I)arcels,  he  should  not  delay  in  making  his  application 


PAUTITIOX.  71 

to  the  court  to  direct  that  the  sale  be  made  in  that  man- 
ner. {Hoffman  v.  Biirl-c,  2i  Hun,  580).  The  inter- 
locutor}' judgment  should  contain  the  terms  of  sale  and 
the  terms  of  credit  to  be  allowed  to  the  purchaser,  etc., 
and  at  the  sale  these  terms  must  be  made  clear  so  as  to 
be  easily  understood;  and  it  is  always  a  safe  practice 
to  have  them  printed,  either  wilh  the  notice  of  sale,  or 
on  a  separate  bill  so  I  hat  each  purchaser  may  obtain  a 
copy;  as  that  course  will  prevent  any  dispute  arising 
after  the  sale  as  to  what  its  terms  really  were. 

The  sheriff  or  referee  acts  as  the  oiticer  of  the  court; 
and  it  is  settled  that  the  contract  of  sale  is  valid  al- 
though no  memorandum  of  the  sale  is  subscribed  by  the 
purchaser,  as  the  case  is  not  regarded  as  coming  within 
the  statute  of  frauds.  {Hegcmun  v.  Johnson,  35  Barb. 
200;  Andrews  v.  O'Muhoney,  112  N.  Y.  567).  But  it  is 
better  that  some  memorandum  of  the  sale  should  be 
made,  as  one  cannot  err  by  having  a  written  memoran- 
dum of  the  sale  made  and  signed  by  the  purchaser. 
(Id.;  Xutional  Fire  Ins.  Co.  v.  Looniis,  11  Paige,  431). 
Such  a  memorandum  is  binding  on  the  purchaser.  (Id). 
It  is  always  the  safest  way  to  have  a  contract  of  sale 
drawn  up  and  signed  not  only  by  the  officer  making  the 
sale,  but  by  the  purchaser. 

The  statute  requires  that  the  referee's  report  of  sale 
should  contain  a  description  of  each  parcel  sold,  the 
name  of  the  purchaser  and  the  price  for  which  it  sold 
(Co.  Civ.  Proc.  §  1576)  ;  and  beyond  this  requirement, 
there  is  no  statutory  provision  that  any  written  memor- 
andum of  the  sale  should  be  made  out  or  signed. 

No  order  to  stay  a  sale  under  a  judgment  in  partition, 
shall  be  granted  or  made  by  a  judge  out  of  court,  except 
upon  a  notice  of  at  least  two  days  to  the  plaintiff's  at- 
torney. (Genl.  Rule,  67).  An  order  to  show  cause 
made  by  a  judge  out  of  court,  and  returnable  in  less 
than  two  days  is  irregular  if  it  contains  such  a  stay. 
{Asinari  v.  VolJiening,  2  Abb.  N.  C.  454).  If  the  offi- 
cer appointed  to  make  the  sale  does  not  appear  at  the 
time  and  place  advertised,  the  attorney  for  the  plaintiff 
may  postpone  or  adjourn  such  sale,  not  to  exceed  four 
weeks,  and  during  such  time  may  make  application  to 


i'2  vnwTwi:. 

tho  court  to  have  another  persou  appointed  to  make 
such  sak'.  (Co.  Civ.  Pioc.  §  1078).  If  the  sale  is 
adjourned,  notice  of  such  postponement  must  be  pub- 
lished. (8ee  subdivision  1,  stupra).  Where  the  sale 
is  postponed,  and  the  otlicer  fails  to  publish  the  notice 
of  the  postponement,  the  sale  is  irregular;  but  if  no 
objection  on  that  ground  is  taken,  it  will  not  be  con- 
sidered void.  {Bcc]istcin  v.  ><cJiiilf::,  45  Ilun,  191  ;  affd., 
120  X.  Y.  168).  If  the  sale  is  directed  to  be  made  by 
the  sheriff,  it  should  be  made  by  the  sheriff  who  was  in 
office  at  the  time  the  notice  of  sale  was  published,  al- 
though his  term  of  office  may  have  expired  before  the 
date  of  sale.  {Cniott  Dime  Sac.  Inst.  v.  AndaricHe,  19 
Hun,  310;  83  N.  Y.  174;  Co.  Civ.  Proc.  §  184,  subd.  4). 

Any  person  competent  to  enter  into  a  contract  may 
purchase  the  property  at  such  a  sale,  unless  specially 
prohibited  by  law  from  so  doing. 

A  commissioner,  or  other  officer  making  such  a  sale, 
or  a  gimrdiau  of  an  infant  party  to  the  action,  shall  not, 
nor  shall  any  person,  for  his  benefit,  directly  or  indi- 
rectly, purchase,  or  be  interested  in  the  purchase  of,  any 
of  the  property  sold ;  except  that  a  guardian  may,  where 
he  is  lawfully  authorized  so  to  do,  purchase  for  the  bene- 
fit or  in  behalf  of  his  ward.  The  violation  of  this  sec- 
tion is  a  misdemeanor;  and  a  purchase,  made  contrary 
to  this  section,  is  void.  (Co.  Civ.  Proc.  §  1079).  A 
guardian  ad  litem  cannot  purchase  for  any  one  except 
his  ward.  (  Lefcrrc  v.  haruirujj,  I'l  Barb.  107).  In 
an  action  of  ejectment  brought  by  the  ward  after  com- 
ing of  age,  such  purchase  is  presumed  to  be  void,  and 
the  burden  is  upon  the  defendant  to  show  that  it  was 
for  the  benefit  of  the  infant.  (O'Donof/huc  v.  lioks, 
159  N.  Y.  87).  A  trustee  cannot  purchase  property 
which  in  any  way  affects  his  trust,  except  for  the  bene- 
fit of  such  cestui  que  trust  (Fulton  v.  ^VhitneJ/,  GO  X.  Y. 
548;  Bennett  v.  Austin,  81  id.  308)  ;  but  a  title  derived 
through  such  purchase  was  held  good  where  the  trustee 
had  also  an  interest  in  the  property  in  his  own  right, 
and  the  court,  with  knowledge  of  the  facts,  had  con- 
firmed the  sale.      (Corhin  v.  Baker,  167  X^.  Y.  128). 


partition.  73 

Subdivision  4. — Report  of  Sale. 

Immediately  after  completing  the  sale,  the  officer 
making  it  must  file  with  the  clerk  his  report  thereof, 
under  oath,  containing  a  description  of  each  parcel  sold, 
the  name  of  the  purchaser  thereof,  and  the  price  at 
which  it  was  sold.      (Co.  Civ.  Proc.  §  1576). 

The  report  should  show  that  the  referee  or  sheriff  has 
complied  with  the  directions  contained  in  the  interlocu- 
tory judgment;  and  where  it  showed  that  the  referee 
had  sold  the  premises  and  applied  the  proceeds  contrary 
to  the  directions  contained  in  the  judgment,  Avhereby 
instead  of  a  surplus  on  such  sale  there  was  a  deficiency 
reported,  the  court  sustained  exceptions  to  the  report; 
nor  would  it  permit  the  referee  to  show  by  affidavits 
that  the  terms  of  the  sale  were  different  from  those 
shown  by  his  report,  and  that  they  were  in  fact  pursu- 
ant to  the  judgment.  {Koch  v.  Purcell,  45  N.  Y.  Super. 
Ct.  Rep.  162).  In  the  case  last  cited,  however,  the 
court  permitted  the  referee  to  make  an  application  to 
the  court  below  for  leave  to  file  a  new  and  corrected 
report,  upon  paying  all  the  costs  of  the  appeal  and  dis- 
bursements. 

As  we  have  seen  already,  the  duties  of  the  referee  are 
ministerial,  and  his  report  should  show  that  he  has  car- 
ried out  the  directions  of  the  court.  The  court  may  by 
interlocutory  judgment  require  that  he  pay  certain  of 
the  proceeds  into  court  (Co.  Civ.  Proc.  §  1563),  or  to 
the  husband  after  the  release  by  the  wife  of  her  in- 
choate right  of  dower  (Co.  Civ.  Proc.  §  1571),  or  to 
deposit  them  for  the  benefit  of  unknown  defendants  (Co. 
Civ.  Proc.  §  1572),  or  to  invest  any  portion  of  the  pur- 
chase money  (Co.  Civ.  Proc.  §  1573),  or  to  take  securi- 
ties for  portions  thereof  (Co.  Civ.  Proc.  §  1575)  ;  the 
report  should  show  that  all  such  directions  have  been 
followed. 

The  report  should  also  show  that  the  notices  required 
by  the  statute  have  been  posted  and  published ;  that  the 
sale  was  at  public  auction,  and  what  proceedings  were 
had  at  the  sale.    It  is  proper  to  annex  to  the  report  the 


1 4  rUACTICE. 

iillidavits  of  the  uotict'S  and  of  the  postiuj;'  and  ijuhlisli- 
iii<i-  thereof.  After  the  report  of  the  reference  is  tiled, 
aiiv  ]»arty  feeiiiu  injured  thereby  may  tih'  exceptions  to  it 
within  ei^ht  days  after  notice  thereof,  ((ienl.  Jiule  30). 
If  exceptions  are  tiled,  tliey  are  heard  and  passed  upon 
as  in  other  cases.  If  none  are  filed  the  report  becomes 
absolute  at  the  expiration  of  the  eight  days.  (Id.; 
BickncU  v.  Byrnes,  23  How.  Pr.  48G).  The  confirma- 
tion should  not  be  ordered  before  the  expiration  of  the 
eight  days,  except  upon  notice  to  all  parties  having  an 
interest  in  the  proceeds.  (Id).  While  it  is  proper  to 
enter  an  order  of  confirmation  of  the  referee's  report,  it 
seems  hardly  necessary,  as  the  final  judgment  operates 
as  a  confirmation  of  the  report.  (Co.  Civ.  Proc.  §  1577; 
see,  also,  article  VI,  infra). 

Subdivision  5. — When  Sale  Set  Aside,  and  Resale. 

The  court  has  power  to  set  aside  and  vacate  a  sale  of 
lands  made  under  a  judgment,  or  pursuant  to  the  order 
of  a  court,  by  an  oliicer  thereof;  and  to  order  a  resale, 
although  there  be  no  fraud,  and  the  sale  is  in  all  respects 
regular.  The  application  for  relief  against  a  judicial 
sale  is  addressed  to  the  discretion  of  the  court  having 
the  original  jurisdiction  of  the  action.  {Hale  v.  Clau- 
son,  60  N.  Y.  339).  The  foregoing  states  the  power  of 
the  court  in  its  fullest  and  broadest  extent.  Within 
that  power,  of  course,  is  included  all  lesser  degrees;  so 
where  fraud  or  irregularity  is  shown,  or  where  the  in- 
terests of  justice  require  it,  the  court,  in  its  discretion 
always  has  power  to  set  aside  a  judicial  sale;  and  as  its 
discretion  is  always  addressed,  on  an  application  to  set 
aside  a  sale,  it  follows  that  it  is  not  usually  the  subject 
of  review,  and  it  cannot  be  reviewed  by  direct  appeal 
to  the  court  of  appeals.  (Id.;  Eazelton  v.  Wakeman, 
3  How.  Pr.  357 ;  Maij  v.  Maij,  11  Paige,  201) .  The  court 
is  not  deprived  of  this  power  by  a  sale  of  the  property 
even  to  a  bona  fide  purchaser;  as  in  such  case,  the  pur- 
chaser buys  subject  to  the  jurisdiction  of  the  court,  and 
by  his  purchase  submits  himself  to  the  court  in  all  re- 
spects as  to  the  sale.      (Id. ;  Cazet  v.  Hubhell,  36  X.  Y. 


PARTITION.  i  O 

677).  So  those  who  take  from  him  and  interfere  with 
the  proceedings  talve  subject  to  the  same  jurisdiction 
and  control.      {Ardier  v.  Archer,  155  N.  Y.  415). 

Where  a  judicial  sale  is  regular  in  all  respects,  it  will 
not  be  set  aside  and  a  resale  directed  for  the  benefit  of 
parties  interested,  to  protect  them  against  their  own 
neglect,  where  the  sale  was  to  a  bona  fide  purchaser, 
especially  if  he  is  a  stranger  to  the  suit,  although  the 
price  may  seem  to  be  inadequate;  unless  such  price  is 
so  very  inadequate  as  to  be  evidence  of  fraud  or  unfair- 
ness in  the  sale.  (American  Ins.  Co.  v.  Oakley,  9 
Paige,  259) .  Mere  inadequacy  of  price  will  not  be  suffi- 
cient ground  to  set  aside  the  sale.  [Howell  v.  Mills, 
53  N.  Y.  322).  But  where  gross  inadequacy  appears 
the  court  may  set  aside  the  sale,  although  there  is  no 
irregularity  {Chapman  v.  Boetcher,  27  Hun,  606;  appeal 
dismissed,  90  N.  Y.  692)  ;  especially  if  the  rights  of  in- 
fants or  incompetent  persons  have  been  prejudiced. 
(Id.;  Duncan  v.  Dodd,  2  Paige,  99).  The  parties  have 
a  right  to  have  the  property  put  up  and  sold  in  the 
usual  manner,  and  in  a  way  to  produce  a  fair  competi- 
tion; and  where  the  property  has  been  sacrificed  by  the 
referee  or  sheriff,  the  parties  injured  are  entitled  to  an 
order  setting  aside  the  sale  and  ordering  a  resale.  ( Id) . 
A  sale  will  be  opened  when^  there  has  been  fraud,  acci- 
dent, mistake,  misrepresentation  or  surprise.  ( hefevre 
v.  Laraway,  22  Barb.  167,  173).  Where  the  rights  of 
infants  have  been  invaded  or  are  in  danger  of  being 
invaded  or  prejudiced,  the  court  without  waiting  to  be 
specially  invoked  to  do  so,  will  exercise  its  jurisdiction 
in  their  behalf.  (Id).  The  court,  however,  is  not  as 
solicitous  of  the  rights  of  adults;  and  if  they  neglect 
such  rights  themselves,  the  court  will  not,  usually,  in- 
terfere with  the  sale,  to  relieve  them  from  the  conse- 
quences of  their  own  neglect;  and  then  only  upon  in- 
demnifying the  purchaser  against  damages  and  expenses 
to  which  he  has  been  subjected.  (Duncan  v.  Dodd,  2 
Paige,  99).  Where  a  sale  was  for  an  inadequate  sum, 
the  court  may  impose  as  a  condition  of  resale,  that  the 
party  applying  therefor  shall  give  sufficient  surety,  to 
its  satisfaction,  that  the  property  will  produce  an  ad- 


76  ruACTicE. 

vanc«l  price  ou  the  resale;  or  in  a  proper  case  it  may 
re(iuire  a  deposit  of  tlie  amount  of  tlie  advanced  price. 
(Id). 

Tlie  application  to  set  aside  the  sale  may  he  made  hy 
any  person,  although  not  a  ])arty  to  the  action,  who  is 
interested  in  the  proceeds  of  the  property.  {Gould  V. 
Mortimer,  2t)  How.  Pr.  IGT).  The  court  may  exercise 
its  power  in  the  interests  of  any  one  whose  rij»hts  are 
affected  by  the  sale.  (Goodcll  v.  Harrington,  7G  N.  Y. 
547).  The  remedy,  in  a  case  where  the  sale  has  operated 
to  the  injury  of  any  person  interested  in  the  proceeds 
thereof,  is  by  a.  motion  made  in  the  action,  and  not  by 
an  orijiinal  action  for  e(iuitable  relief.  (Broicn  V. 
Frost,  10  Paige,  243;  McCotter  v.  Jaij,  30  N.  Y.  80). 
The  application,  as  we  have  before  seen,  is  addressed  to 
the  discretion  of  the  court,  and  is  not  an  absolute  right. 
(Id.;  Farmers  Loan  and  Trust  Go.  r.  Jiankcrs,  etc.,  Co., 
119  N.  Y.  15).  The  application  usually  should  be  made 
before  the  confirmation  of  the  report ;  but,  in  a  proper 
case,  the  court  may  grant  the  application,  although 
made  after  the  report  had  been  confirmed,  and  the  deed 
delivered  to  the  ])urchaser.  (Crane  v.  ^Stif/er,  2  T.  &  C. 
577;  appeal  dismissed,  58  N.  Y.  625).  The  regularity 
of  the  sale  will  be  presumed,  in  all  cases,  in  the  absence 
of  proof  to  the  contrary.  (Hart  v.  Wandle,  50  N.  Y. 
381).  A  resale  may  be  had  by  the  referee  or  sheriff 
where  before  making  his  report,  the  purchaser  refuses 
to  complete  the  sale,  or  to  comply  with  its  terms.  Buch 
resale  should  be  had  after  re-advertising  the  property, 
as  if  no  sale  had  been  made.  But  if  the  time  for  selling 
pursuant  to  the  notice  has  passed,  the  officer  making 
the  sale  cannot  again  sell  without  the  authority  of  the 
court,  unless  it  is  thus  advertised  again.  (Bicknell  v. 
Byrnes,  23  How.  Pr.  480). 

Where  the  defendant,  or  any  party  to  the  action,  em- 
ployed improper  means  at  the  sale,  as  a  puffer  or  sham 
bidder,  with  intent  to  induce  the  ])urcliaser  to  bid  more 
than  the  property  is  worth,  the  sale  will  be  set  aside. 
{Fisher  v.  Herseij,  17  Ilun,  370;  appeal  dismissed,  78 
N.  Y.  387).  This  proceeds  on  the  theory  that  the  em- 
ployment of  a  i)utfer  is  such  a  fraud  upon  the  purchaser 


PARTITION.  77 

that  it  avoids  the  contract  (2  Kent's  Comm.  537). 
The  rii^ht  in  such  case  to  have  the  sale  set  aside  is  a  legal 
right,  and  not  in  the  discretion  of  the  court ;  as  such  a 
sale,  being  absolutely  void  for  fraud,  cannot  be  sus- 
tained by  the  discretion  of  a  court ;  and  a  refusal  to  set 
it  aside  may  be  reviewed  in  the  court  of  appeals;  but 
the  setting  aside  of  such  a  sale,  and  the  ordering  of  a 
resale,  cannot  be  reviewed  in  that  court.  {Fisher  v. 
Hersey,  78  N.  Y.  387).  But  in  such  a  case,  as  in  any 
other,  where  the  final  judgment  is  not  appealed  from, 
although  it  might  have  been  appealed  from  for  irregu- 
larity or  fraud,  it  becomes  conclusive  against  all  the 
parties  to  the  action.      {Prior  v.  Prior,  49  Hun,  502). 

Subdivision  6. — Rights  and  Duties  of  Purchaser. 

As  Ave  have  seen  in  the  preceding  subdivision,  the  pur- 
chaser on  a  judicial  sale  submits  himself  to  the  jurisdic- 
tion of  the  court,  and  is,  therefore,  bound  by  its  reason- 
able orders ;  still,  where  he  is  not  a  party  to  the  suit,  his 
rights  will  be  regarded  by  the  court,  to  the  extent  of 
saving  him  harmless  from  anything  excepting  his  own 
acts  or  neglect.  Thus  he  will  not  be  required  to  take  a 
doubtful  title,  and  where  irregularities  or  defects  exist 
in  the  proceedings  which  require  further  or  other  pro- 
ceedings to  cure  them,  he  will  not  be  required  to  take 
title  until  such  steps  have  been  taken  and  the  defects  or 
irregularities  corrected ;  nor  will  he  be  required  to  take 
title,  at  all,  if  such  corrections  have  not  been  made  at  the 
time  fixed  hj  the  terms  of  sale  as  the  time  for  complet- 
ing it ;  but  he  may  be  relieved  from  his  contract  if  he  so 
desires.  He  should  not  be  ordered  to  await  the  cor- 
rection of  the  title,  and  then  to  perform  his  contract 
after  the  time  fixed  by  the  terms  of  sale  has  expired. 
{Toole  V.  Toole,  112  N.  Y.  333). 

The  purchaser's  contract  calls  for  a  good  title ;  and  if 
it  is  bad  or  doubtful,  he  should  be  relieved  from  com- 
pleting his  purchase.  The  purchaser  has  a  right  to  as- 
sume that  the  decree  and  sale  thereunder  confer  not 
merely  a  good  legal  title,  but  a  title  not  open  to  further 
question  or  reasonable  dispute  by  other  persons.      (Id). 


7S  I'UAL'TICE. 

The  doubt,  however,  as  to  llie  title,  shoiihl  be  a  reason- 
able one,  aD(l  not  a  remote  contingency,  {(\imbrcllcng 
V.  Purloii,  IlT)  N.  Y.  ()UI;  (loodirin  V.  CrooA.y,  5S  Aj*]). 
Div.  404;  Pel  I  v.  Pell,  05  App.  Div.  388;  affd.  without 
op.,  109  N.  Y.  OUT).  But  before  the  court  will  be  justi- 
fied in  ordering  a  purchaser  to  complete  his  purchase, 
it  should  be  satisfied  that  the  title  is  free  from  reason- 
able doubt.  {Feni/  v.  Sampson,  112  N.  Y.  415).  If 
the  title  is  not  one  that  is  marketable,  the  purchaser  is 
not  obligcni  to  take  it.  (Sli river  v.  Slirircr,  80  N.  Y'. 
575;  Fleming  v.  Burnham,  100  N.  Y.  1 ).  Such  marketa- 
ble title  is  not  established  by  mere  possession  for  twenty 
years,  not  shown  to  be  adverse.  {Heller  v.  Cohen,  154 
X.  Y.  299;  Gorman  v.  Gorman,  40  App.  Div.  225;  affd. 
on  op.  below,  159  N.  Y''.  571).  The  court  will  not  com- 
pel him  to  take  a  title  which  leaves  him  to  a  test  with, 
other  parties,  which  may  affect  the  value  of  the  prop- 
erty. ('Ionian  v.  Foillon,  77  N.  Y^.  518;  Heller  v.  (^ohen, 
supra).  The  purchaser  makes  his  bid  on  the  implied 
condition  that  the  title  will  be  marketable,  and  that 
there  are  no  undisclos(d  defects.  [Fleming  v.  Burn- 
ham,  100  X.  Y.  1  ).  ]^ut  where  the  title  can  be  cured, 
even  by  parol  proof,  and  such  proof  is  offered,  the  pur- 
chaser cannot  refuse  to  complete  his  purchase.  {Hell- 
reigel  v.  Manning,  97  N.  Y^.  50;  Murray  v.  Harway,  50 
N.  Y^.  337).  Upon  an  application  to  compel  a  pur- 
chaser to  complete  his  purchase  a  referee  can  be  ap- 
pointed to  ascertain  and  n^port  whether  the  summons 
was  ser^'ed  on  all  the  defendants.  {(YConnor  v.  Felix, 
147  N.  Y^.  014).  So  also  where  the  purchaser  does  not 
inform  himself  as  to  the  property  he  is  buying,  he  wMll 
not  be  relieved,  although  he  believes  that  the  property 
contains  a  certain  number  of  acres,  where  in  fact  it  con- 
tains a  less  number.  {Dennerlein  v.  Dennerlein,  111 
N.  Y.  518).  If  the  purchaser  wishes  to  be  relieved  from 
his  purchase  on  the  ground  that  there  are  liens  against 
the  pro])erty,  his  remedy  is  to  furnish  affirmative  evi- 
dence of  such  liens,  and  ask  to  have  them  removed,  or 
that  he  be  relieved  from  the  purchase;  and  until  he  does 
this,  he  presents  no  case  for  the  interference  of  the  court. 
{'Sohle  v.  Cromwell,  27  How.  Pr.  289).      Where  a  de- 


PAUTITION.  79 

feet  of  title  does  not  appear  until  after  the  purchase  has 
been  completed,  still  the  purchaser's  rights  are  not 
barred;  and  the  court  in  a  proper  case,  in  the  exercise 
of  its  equity  powers,  can  still  relieve  the  purchaser,  al- 
though it  will  act  with  great  caution  after  the  deed  has 
been  executed  and  delivered,  and  only  when  a  very  plain 
case  is  made.  {Paine  v.  Upton,  87  N.  Y.  327;  Crane  v. 
Sfujer,  2  T.  &  C.  577;  affd.,  58  N.  Y.  625). 

The  fact  that  the  judgment  made  no  provision  for 
ascertaining  the  dower  rights  of  a  party  to  the  suit,  is 
not  a  ground  for  relief,  as  the  judgment  cannot  be  ques- 
tioned collaterally;  and  if  the  party  entitled  to  an  ap- 
peal from  the  judgment  on  that  ground,  did  not  take 
advantage  of  her  rights,  the  purchaser  cannot  object. 
(Jordan  v.  Tan  Epps,  85  N.  Y.  427).  But  he  will  not 
be  compelled  to  take  title  where  in  an  action  of  partition 
the  judgment  has  made  no  provision  for  after-born  de- 
visees having  contingent  interests  in  the  land  {Hniith 
V.  Secor,  157  N.  Y.  402 )  ;  but  will  be  where  the  interests 
of  such  after-born  persons  are  provided  for  by  the  judg- 
ment. (Kirk  V.  Kirk,  137  N.  Y.  510).  Where  the  pur- 
chaser gets  substantially  what  he  contracts  for,  he  will 
be  compelled  to  complete  his  purchase;  and  will  not  be 
relieved  for  apparent  defects  in  the  property  or  the  title, 
of  which  he  had  due  notice,  and  in  reference  to  which 
he  may  be  supposed  to  have  made  his  bid.  {Riggs  v. 
Piirseh,  66  N.  Y.  193;  Eoepke  v.  Bradley,  3  App.  Div. 
391;  affd.  on  op.  below,  151  N.  Y.  622;  Kmgsland  v. 
Fuller,  157  N.  Y.  507).  Where  he  knew  of  certain  de- 
fects which  would  affect  the  value  of  the  property,  as 
if  there  was  no  right  of  way  to  reach  it,  he  will  not  be 
relieved  from  his  purchase.  (Coates  v.  FairchUd,  14 
Wk.  Dig.  189 ;  affd.  on  op.  below,  89  N.  Y.  631 ;  Mott  v. 
Mott,  68  N.  Y.  247).  The  mere  fact  that  the  judgment 
directing  the  sale  of  the  property  might  have  been  set 
aside  as  irregular,  is  not  a  ground  upon  which  the  pur- 
chaser will  be  relieved  from  completing  his  purchase, 
if  the  coui-t  had  jurisdiction  of  the  parties  and  the  sub- 
ject matter  and  had  power  to  render  the  judgment.  His 
title  is  not  affected  unless  the  judgment  is  actually  set 


80  PRACTICE. 

;isi(l(*.  (I)c  Forrat  V,  Farley,  02  N.  Y.  028;  Dnrrin  v. 
JJ(il/i<l(l,  4  Sand.  408). 

The  causes  which  will  bo  suftiriont  to  relieve  a  i)iii'- 
chaser  from  eoiiipletiu.u'  his  i)ur(hase  de[)eiul  on  the  cir- 
(iinisianees  of  each  case;  and  whether,  or  not,  the  title 
offt  led  to  the  inirehaser  is  such  ii  one  as  the  court  will 
re(|uire  him  to  take,  must  be  deterniine<l  upon  the  facts 
in  each  case.  It  is  sufficient  for  the  purpose  of  this 
chai>ter  to  say  that  it  must  be  a  j^ood  title,  free  from 
reasonable  doubts  and  marketable.  A\'liere  fraud  has 
enteretl  into  the  sale,  as  by  the  employment  of  a  puiTer 
to  make  false  l)ids,  the  ])urchaser,  if  he  can  show  that  he 
has  been  injured,  will  be  relieved  by  the  court  from  his 
purchase;  and  in  such  a  case,  where  the  purchaser  is  not 
guilty  of  nef^lect,  the  court  in  relievin*i'  him  from  his  pur- 
chase, will  not  impose  terms  as  a  condition  of  setting 
aside  the  sale.  {Fisher  v.  Mersey,  17  Hun,  370;  alfd., 
78  X.  Y.  387).  Where  there  has  been  an  agreement 
between  the  purchaser  and  some  of  the  parties  which 
prevented  competition,  the  contract  is  void  as  against 
public  policy,  and  the  court  will  not  lend  itself  to  en- 
force such  a  contract  on  behalf  of  either  party,  but  will 
on  the  application  of  parties  injured  thereby  set  aside 
the  sale  and  order  a  resale.  {Wheeler  v.  Wheeler,  5 
Lans.  355).  AVhere  between  the  date  of  the  sale  and 
the  delivery  of  the  deed,  the  property  has  been  ma- 
terially injured,  the  purchaser  will  be  relieved  {Aspin- 
ivull  v.  Balch,  7  Daly,  200;  Mutual  L.  Ins.  Co.  v.  BalcJi, 
4  Abb.  N.  C.  200;  Harrigan  v.  Golden,  41  App.  Div.  423), 
unless  l)v  the  terms  of  the  sale  the  purchaser  is  author- 
ized to  take  immediate  possession  of  the  property;  in 
which  case  he  assumes  the  risk  of  accident  or  injury  to 
it.  {McKechnie  v.  Sterling,  48  Barb.  330).  Where, 
however,  the  purchaser  is  not  authorized  to  take  such 
immediate  possession  of  the  property,  and  it  is  injured, 
still  he  will  not  be  relieved  from  performing  the  con- 
tract, if  the  full  and  adeciuate  compensation  is  offered. 
{Aspinicall  v.  Batch,  4  Abb.  N.  C.  193). 

As  to  the  right  of  the  purchaser  to  compel  the  delivery 
of  the  possession  of  the  property  he  has  purchased,  see 
article  VI,  section  5,  infra. 


PARTITION.  81 

The  title  of  the  purchaser  is  good  as  against  all  the 
parties  to  the  action,  and  against  any  one  claiming 
through  or  under  a  party,  by  a  title  accruing  after  the 
filing  of  a  notice  of  pendency  of  action.  {Brooks  v. 
Acker] I/,  16  X.  Y.  St.  Kep.  650;  100  N.  Y.  195).  He  is 
not  bound  to  take  title  of  lands,  however,  unless  he  can 
be  put  into  possession.  {Kapp  v.  Kapp,  15  N.  Y.  St. 
Rep.  967.).  But  where  there  is  a  person  in  possession, 
who  is  not  made  a  party,  the  purchaser  takes  subject  to 
the  rights  of  such  person,  as  the  possession  of  such  per- 
sion  is  a  constrictive  notice  of  his  rights.  (Bell  v. 
Gittere,  11  N.  Y.  St.  Kep.  61).  A  purchaser  will  not  be 
relieved  simply  on  the  ground  that  the  guardian  ad 
litem  of  an  infant  failed  to  file  a  bond  for  each  of  the 
infant  parties  [Beed  v.  Beed,  16  Hun,  212;  affd.,  107 
N.  Y.  515)  ;  or  because  the  action  was  brought  by  a 
tenant  by  the  curtesy  of  the  whole  estate,  if  no  one  en- 
titled thereto  appealed  from  the  final  judgment  (Id.; 
Tilton  V.  Vail,  53  Hun,  321;  appeal  dismissed,  117  N. 
Y^.  520),  or  on  the  ground  that  the  power  of  sale  con- 
tained in  the  will  defeated  the  right  to  bring  the  action, 
the  judgment  in  the  action  being  conclusive  on  such 
point  {Barish  v.  Barish,  175  N.  Y.  181)  ;  or  on  the 
ground  of  an  irregularity  in  the  appointment  of  a  guar- 
dian ad  litem,  even  though  such  appointment  could  have 
been  vacated  by  direct  proceeding.  (Barii^h  v.  Barish, 
supra ) .  But  where  a  guardian  ad  litem  was  appointed 
before  service  upon  the  infant  by  publication  was  com- 
pleted, it  was  held  that,  although  the  defect  was  curable 
by  proper  proceedings,  the  burden  of  such  proceedings 
could  not  be  cast  upon  the  purchaser.  {C router  v. 
C router,  133  N.  Y.  55).  Upon  confirmation  of  the 
referee's  report  of  sale,  the  purchaser  can  be  compelled 
to  complete  his  purchase,  even  though  final  judgment 
has  not  been  entered.      [Kirk  v.  Kirk,  137  N.  Y.  510). 

An  application  to  compel  a  purchaser  to  take  title 
and  that  of  a  purchaser  to  be  relieved  of  his  bid  are 
special  proceedings,  and  when  they  present  solely  ques- 
tions of  law,  orders  made  in  them  are  appealable  to  the 
court  of  appeals  {Barish  V.  Barish,  supra) ;  but  where 
6 


82  I'KACTICE. 

<inesti<»i»s  of  fact  niv  imdlvcd  or  I  he  exorcise  of  discre- 
tion, I  here  is  no  review,  of  course,  in  the  court  of  aj)- 
])eals.  {('rocker  v.  (loUiicr,  135  N.  Y.  002).  A  pui*- 
cliaser  is  not  estopped  from  (►bjectinjj^  to  the  title  by  tlie 
mere  fact  that  as  a  mortgaj»ee  he  was  a  party  defendant 
in  tlie  action.  {MalioiKi/  v.  AJJcu,  18  Misc.  134).  A 
pnrcliaser  has  a  ri«i;lit  to  have  tlie  liens  aj^ainst  the  proj)- 
erty  paid  by  the  referee  where  the  judgment  directs  them 
to  be  paid ;  and  the  delay  of  the  purchaser  for  two  years 
to  move  to  compel  the  referee  to  pay  them  has  been  lield 
not  to  defeat  his  right.  (  Wiseman  v.  Wingrove,  85  N. 
Y.  353).  Where  the  i)arties  are  not  ready  at  the  time 
fixed,  to  deliver  the  deed  to  the  pur<haser,  his  remedy  is, 
by  a  motion  for  leave  to  pay  the  money  into  court  and 
have  it  invested,  or  to  compel  the  completion  of  the  sale; 
or,  as  we  have  seen  above,  to  be  relieve<l  from  the  sale. 
(Clason  V.  Carlei/,  5  Sand.  447).  A  purchaser,  until 
the  sale  is  comph^ted,  is  not  entitled  to  the  rents  and 
profits  of  the  premises,  as  until  the  action  of  the  court, 
through  its  officers,  either  by  executing  a  deed  or  other- 
wise confirming  a  sale,  the  contract  is  not  completed  be- 
tween the  purchaser  and  the  court.  (Id).  Where  the 
purchaser  is  entitled  to  possession,  the  court  will  assist 
him  in  obtaining  it,  by  proper  mandates.  {Frcliruj- 
hiiysen  v.  Colden,  4  Paige,  204).  See,  also,  section  5  in 
the  following  article. 

Sec.    3.    Hovr  purchase  money  secured. 

The  portion  of  the  purchase  money,  for  which  credit 
is  allowed,  must  always  be  secured  at  interest,  by  a 
mortgage  upon  the  property  sold,  with  a  bond  of  the 
purchaser;  and  by  such  additional  security,  if  any,  as 
the  court  prescribes.      (Co.  Civ.  Proc.  §  1574). 

The  officer  making  the  sale  may  take  separate  mort- 
gages and  other  securities,  in  the  name  of  the  county 
treasurer  of  the  county  in  which  the  property  is  situated, 
for  such  convenient  portions  of  the  purchase  money,  as 
are  directed  by  the  court  to  be  invested ;  and  in  the  name 
of  the  owner,  for  the  share  of  any  known  owner  of  full 
age,  who  desires  to  have  it  invested.  (Co.  Civ.  Proc. 
§  1575). 


PAKTITION.  83 

Sec.    4.    Costs  in  partition. 

As  to  the  costs  in  partition,  except  as  mentioned  be- 
low, they  are  reguhited  by  the  same  rules  as  in  other 
actions,  and  are  fully  treated  in  volume  II,  pages  537, 
et  seq. 

Costs  in  partition  are  in  the  discretion  of  the  court, 
and  the  fact  that  an  issue  of  fact  triable  by  a  jury  is 
involved,  does  not  bring-  the  action  within  section  3228, 
subdivision  1  of  the  code,  (Weston  v.  Stoddard,  22  Civ. 
Proc.  Rep.  51;  Wells  v.  V under iverker,  45  App.  Div. 
155;  see,  also,  vol.  II,  pp.  542,  562). 

The  fees  and  expenses  of  the  commissioners,  includ- 
ing the  expense  of  a  survey,  when  it  is  made,  must  be 
taxed  under  the  direction  of  the  court;  and  the  amount 
thereof  must  be  paid  by  the  plaintiff,  and  allowed  as 
part  of  his  costs.      (Co.  Civ.  Proc.  §  1555). 

As  to  the  fees  of  surveyor  or  commissioner  in  parti- 
tion, see  volume  II,  page  662.  The  final  judgment  for 
partition  of  the  property  must  also  award,  that  each 
defendant  pay  to  the  plaintiff  his  proportion  of  the 
plaintiff's  costs,  including  the  extra  allowance.  The 
sum  to  be  paid  by  each  must  be  fixed  by  the  court,  ac- 
cording to  the  respective  rights  of  the  parties,  and  speci- 
fied in  the  judgment.  If  a  defendant  is  unknown,  his 
proportion  of  the  costs  must  be  fixed  and  specified  in 
like  manner.  An  execution  against  an  unknown  de- 
fendant may  be  issued  to  collect  the  costs  awarded 
against  him,  as  if  he  was  named  in  the  judgment;  and 
his  right,  share,  or  interest  in  the  property  may  be  sold 
by  virtue  thereof,  as  if  he  was  named  in  the  execution. 
(Co.  Civ.  Proc.  §  1559). 

The  court  has  power  under  section  3253  of  the  code 
to  make  an  allowance  to  a  defendant  in  an  action  in 
which  a  judgment  of  actual  partition  is  entered. 
(Crossman  v.  Wycl-off,  64  App.  Div.  554). 

As  to  the  application  for  the  allowance  in  addition 
to  costs  see  volume  II,  page  622.  Where  a  widow  en- 
titled to  dower,  is  a  party  to  the  suit,  she  is  properly 
chargeable  with  a  portion  of  the  costs.  (Tanner  v. 
XileSy  1  Barb.  560).     The  court  has  no  right  to  charge 


S4  I'KAC'l'ICE. 

citlic'i-  |»;n'l.v  w  iili  llu*  cuiire  costs  on  the  «j;roim(l  that  lie 
refused  i<>  iiiaUc  ])artiti()n  by  ajireement.  {McGouan 
V.  Morroir,  o  Co.  J{ep.  J)).  Where  unnecessary  parties 
are  brought  into  the  suit,  costs  made  by  reason  of  it,  will 
be  eharjied  on  the  party  thus  bringinjj;  them  in,  unless 
they  were  bi-ouj>ht  in  at  the  rc^juest  of  the  other  parties. 
{Hammcrslci/  v.  Hiuiuncrsicij,  7  N.  Y.  Leg.  Obs.  127). 
The  lien  of  an  attorney  for  his  costs  is  the  same  as  in 
other  cases. 

Where  tinal  judgment,  confirming  a  sale,  is  rendered, 
the  costs  of  each  party  to  the  action,  and  the  expenses 
of  the  sale,  including  the  ofticer's  fees,  must  be  d(Mlucted 
from  the  proceeds  of  the  sale,  and  each  party's  costs 
must  be  paid  to  his  attorney.  But  the  court  may,  in  its 
discretion,  direct  that  the  costs  and  expenses  of  any 
trial,  reference,  or  other  proceeding  in  the  action,  be 
paid  out  of  the  share  of  any  party  in  the  proceeds,  or 
may  render  judgment  against  any  party  therefor. 
Where  a  proportion  of  the  proceeds  is  to  be  paid  to,  or 
invested  for  the  benefit  of  any  person,  as  prescribed  in 
any  provision  of  the  article  of  the  code  on  i)artition,  the 
amount  thereof  must  be  determined  by  the  residue  of  the 
entire  proceeds,  remaining  after  deducting  the  costs  and 
expenses  chargeable  against  them.  (Co.  Civ.  Proc.  § 
1579). 

Unpaid  taxes,  assessments,  and  water  rates  are 
deemed  expenses  of  the  sale.      (Co.  Civ.  Proc.  §  1676). 

The  court  has  no  power  to  grant  costs  until  applica- 
tion is  made  for  final  judgment.  {Wells  v.  Vander- 
werker,  supra;  Fhjnn  v.  Kennedy,  62  Ilun,  26). 

Sec.    5.    Distribution  of  the  proceeds. 

Subdivision  1. — In  General. 

The  proceeds  of  a  sale,  after  deducting  therefrom  the 
costs  and  expenses  chargeable  against  them,  must  be 
awarded  to  the  parties  whose  rights  and  interests  have 
been  sold,  in  proportion  thereto.  The  sum  chargeable 
U])on  any  share,  to  satisfy  a  lien  ihereon,  must  be  paid 
to  the  creditor,  or  retained,  subject  to  the  order  of  the 


PARTITION.  85 

court;  and  the  remainder,  except  as  otherwise  prescribed 
in  the  article  of  the  code  on  partition  must  be  paid,  by 
the  officer  makiuf?  the  sale,  to  the  party  owning  the 
share,  or  his  legal  representatives,  or  into  court  for  his 
use.      (Co.  Civ.  Proc.  §  1580). 

The  court  has  jurisdiction  of  the  fund,  and  adjudges 
how  the  distribution  shall  be  made ;  and  where  there  are 
incumbrances  against  the  share  of  any  of  the  parties, 
that  fact  being  incidental  or  collateral  to  the  main  pur- 
pose of  the  action,  upon  the  coming  in  of  the  referee's 
report  of  sale,  it  may  direct  as  to  how  the  rights  of  such 
incumbrancers  shall  be  protected.  (Halsted  v,  HaUted, 
55  N.  Y.  442).  Where  a  dispute  arises  as  to  the  title  to 
the  funds  arising  on  a  sale  in  partition,  which  have  been 
deposited  with  the  county  treasurer,  it  seems  that  such 
disputes  must  be  settled  by  action,  and  not  by  an  order 
in  the  action.      {Matter  of  Castle,  2  N.  Y.  St.  Rep.  362). 

The  execution  of  the  judgment  will  not  be  stayed  be- 
yond a  reasonable  time  to  allow  a  creditor  to  bring  his 
action  to  obtain  a  lien  upon  the  proceeds.  {Flatt  V. 
Piatt,  3  N.  Y.  St.  Rep.  179).  Where  a  party  invoked 
the  aid  of  equity,  he  must  do  e(iuity;  and  before  he  is 
entitled  to  receive  his  share  of  the  proceeds  of  the  sale, 
he  must  extinguish  a  lieu  upon  the  property  which  he 
is  equitably  bound  to  pay.  {E rails  v.  ^\'oods,  25  N.  Y. 
St.  Rep.  498).  So  also  it  is  proper  to  require  the  pay- 
ment, by  an  heir  out  of  his  share,  of  any  indebtedness 
owing  by  him  to  the  estate.  (riatt  v.  Flatt,  15  N.  Y. 
St.  Rep. "^285;  affd.  without  op.,  110  X.  Y.  648).  In  the 
distribution  of  the  proceeds  of  a  sale,  it  is  not  proper, 
how^ever,  to  charge  the  tenants  in  common  with  rental 
for  the  use  of  the  share  occupied  by  them  during  the 
period  of  their  occupancy;  unless  it  was  to  the  exclusion 
of  the  others  entitled  to  such  occupancy.  {Rich  v. 
Rich,  50  Hun,  199).  But,  as  we  have  seen,  the  court 
may  adjust  the  rights  of  the  parties  as  to  the  rents  and 
profits  received  by  them.      (Co.  Civ.  Proc.  §  1589). 

The  court  by  final  judgment  directs  the  application  of 
the  proceeds  of  the  sale.  (Co.  Civ.  Proc.  §  1577). 
AVhere  the  action  is  between  adults,  all  of  whom  have 


8G  I'KACTICK. 

jipix'iirt'd  in  the  action,  the  power  to  order  eompensation 
for  einialitv  of  })artitiou  is  in  the  diseretion  of  the  court  ; 
and  where  such  compensation  has  heeu  ordered,  it  will 
not  he  disturhed,  unless  the  power  has  heen  abused,  or 
exercised  so  as  to  oix'rate  injuriously.  [J'oi^t  V.  J'osf, 
G5  Barb.  19lM.  Where,  however,  there  are  infant 
owners  it  is  the  duty  of  the  court  to  inciuire  into  the 
circumstances  of  the  infant,  and  it  cannot  re(|uire  com- 
l)eusatiou  to  be  paid  by  such  infant  unless  both  condi- 
tions exist,  that  is,  that  the  infant  has  personal  pro]>- 
erty  sufficient  to  pay  it,  and  that  his  iutercM^ts  will  be 
proniotwl  thereby.  (Co.  Civ.  Proc.  §  1587).  Where  a 
party  has  biH'U  obliged  to  make  improvements  to  pre- 
serve the  pro])erty,  it  is  projK'r  to  re(|uire  the  other  par- 
ties to  contribute  their  portion  of  such  expense.  {Pren- 
tice V.  Jansen,  21  Alb.  Law  J.  174;  attd.,  79  N.  Y,  478). 
As  has  been  seen  in  section  four  above,  the  costs,  in- 
cluding];- additional  allowances,  fees  and  expenses  of  com- 
missioners and  surveyor,  taxes  and  assessments,  water- 
rates  and  liens  upon  the  property,  are  to  be  paid  out  of 
the  proceeds,  before  the  division  is  made.  (Co.  (.'iv. 
Proc.  §  1580). 

When  the  action  is  brouuht  within  three  years  after 
the  issuini*-  of  letters  upon  the  estate  of  a  decedent  from 
whom  plaintiff's  title  is  derived,  or  upon  the  estate  of 
a  p<'rson  who,  if  living-,  should  be  a  party  to  the  action, 
and  the  interlocutory  jud^uient  contains  a  direction  that 
the  property  or  interest  which  belonged  to  such  de- 
<edent  be  sold  free  froui  the  lien  of  his  general  debts, 
the  final  judgment  shall  direct  that  the  net  avails  of  the 
sale  of  such  property  frt*  interest  be  paid  into  court.  In 
case,  however,  such  three  years  have  elapsed  Ix'fore  final 
judgment  is  rcMidered,  the  court  shall,  u|»on  the  cei'titi- 
cate  of  the  surrogate  showing  such  fact  and  showing 
that  no  ])roceeding  to  mortgage,  lease  or  sell  for  the 
payment  of  debts  has  been  l)egun,  and  upon  the  certifi- 
cate of  the  county  clerk  that  no  notice  has  been  tiled 
un(l(  r  section  2751  of  the  code,  direct  the  payment  of 
the  different  shares  to  the  persons  entitled  thereto. 
(Co.  Civ.  Proc.  §  1538). 


pautitiox.  87 

Subdivision  2. — Wheue  Pauty  is  an  Infant,  or  Un- 
known. 

If  a  person,  entitled  to  an  estate  or  interest  in  the 
property  sold,  is  made  a  party  as  an  unknown  defend- 
ant, the  court  must  provide  for  the  protection  of  his 
rights,  as  far  as  may  be,  as  if  he  was  known  and  had 
appeared.      (Co.  Civ.  Proc.  §  1572). 

\A'here  a  party  entitled  to  receive  a  portion  of  the  pro- 
ceeds is  an  infant,  the  court  may  direct  it  to  be  invested 
in  permanent  securities  in  the  name  and  for  the  bene- 
fit of  the  infant,  or  it  may  direct  it  to  be  paid  over  to 
the  general  guardian  of  the  said  infant  when  the  guar- 
dian shall  have  executed  to  such  infant  a  bond  with  two 
sureties  which  shall  be  approved  by  the  court;  or  if  any 
of  the  moneys  arising  from  the  proceeds  of  such  sale 
shall  have  been  paid  to  the  county  treasurer,  and  on  due 
proof  that  such  money  has  remained  uninvested  in  per- 
manent securities  for  the  space  of  three  mouths,  may  di- 
rect the  same  to  be  paid  to  the  general  guardian  of  such 
infant  upon  his  giving  an  undertaking  in  an  amount  and 
with  sureties,  satisfactory  to  the  court  for  the  faithful 
execution  of  his  trust.  In  the  case  of  an  infant  residing 
without  the  state,  and  having  in  the  state  or  country 
where  he  or  she  resides  a  general  guardian,  or  person 
duly  appointed  under  the  laws  of  such  state  or  country, 
to  the  control  and  entitled,  by  the  laws  of  such  state  or 
countr}',  to  the  custody  of  the  money  of  such  infant,  the 
court,  upon  satisfactory  proof  of  such  facts  and  of  the 
sufficiency  of  the  bond  or  security  given  b}-  such  general 
guardian  or  jDcrson  in  such  state  or  country  by  the  cer- 
tificate of  a  judge  of  a  court  of  record  of  such  state  or 
country,  or  otherwise,  may  direct  that  the  portion  of 
such  infant  arising  upon  such  sale  shall  be  paid  over  to 
such  general  guardian  or  person.  (Co.  Civ.  Proc.  § 
1581). 

Where  a  person  has  been  made  a  defendant  as  an  un- 
known person,  or  where  the  name  of  the  defendant  is 
unknown,  or  where  the  summons  has  l)een  served  upon  a 
defendant  without  the  state,  or  by  publication,  and  he 


S8  rKA(  ricE. 

has  not  api»('ar('(l  in  the  action,  (he  court  must  direct  his 
portion  to  he  invested  in  |ieriiianent  securities  at  in- 
teirst,  for  his  lieuelit  until  chiiiiied  l>v  him  or  his  ienal 
i'( -pn  sentalives.       (Co.  Civ.  I'roc.  §  ir)Sli). 

This  section,  in  achlition  to  the  foreiioini:  dii-eciion, 
contains  provisions  for  th(  distriluit ion  of  tlie  fund  so 
l>aid  into  court.  Tliese  proxisions  substantially  rcfpiire 
that  unless  the  application  for  the  fund  is  uunle  Ity  per- 
sons entitled  thereto  as  unknown  owners  or  unknown 
defendants,  it  shall  remain  invested  for  twenty-tive 
years,  after  which  time,  upon  proceedin<>s  taken  as  de- 
scribed more  particularly  in  the  statute,  the  court  is  au- 
thorized to  direct  the  i)aymeut  of  the  fund  so  invested  to 
the  persons,  other  than  uukuinvn  defendants,  who  shall 
show  themselves  entitled  to  it,  and  all  other  persons  are 
barred  from  any  claim  to  share  in  the  fund,  except  those 
to  whom  it  shall  be  awarded  by  the  court  u])on  these  pro- 
ceedings, after  a  hearing  had  as  therein  prescribed. 
These  proceedings  are  i)articularly  described  in  the  sec- 
tion of  the  code  alluded  to  and  reference  to  that  section 
must  be  had  by  any  one  who  desires  to  obtain  a  fund  in 
accordance  therewith. 

The  provisions  for  the  distribution  of  the  fund  were 
declared  unconstitutional  in  People  ex  rel.  Miller  V. 
Ryder  (124:  X.  V.  500,  reversing  58  llun,  407).  To  meet 
the  constitutional  objections  section  1582  was  amended 
in  1801,  and  as  amended  was  held  unconstitutional  in 
People  ex  rel.  (Jriffin  v.  Ryder  (Go  Hun,  175).  The  sec- 
tion was  again  amended  in  1893. 

Subdivision  3. — Where  a  Dower  Right  Exists. 

Where  a  party  has  an  existing  right  of  dower  in  the 
entire  property  directed  to  be  sold,  at  the  time  when  an 
interlocutory  judg-ment  for  a  sale  is  rendered  in  an 
action  for  partition,  the  court  must  consider  and  de- 
termine whether  tlu  interests  (!f  all  the  parties  require, 
that  the  right  of  dower  should  be  excepted  from  the  sale, 
or  that  it  should  be  sold.      (To.  Civ.  Proc.  §  1507). 

If  a  sale  of  the  property,  including  the  right  of  dower, 
is  directed,  the  interest  of  the  party  entitled  to  the  right 


PARTITION.  89 

of  dower  sliall  paSvS  thereby;  and  the  purchaser,  his  heirs 
and  assigns,  shall  hold  the  property  free  and  diseharged 
from  any  claim,  by  virtue  of  that  right.  In  that  case, 
the  dowress  is  entitled  to  receive,  from  the  proceeds  of 
the  sale  of  the  whole  property,  a  gross  sum,  in  satis- 
faction of  her  right  of  dower,  or  to  have  one-third  of 
those  proceeds  paid  into  court,  for  the  purpose  of  being 
invested  for  her  benefit,  as  prescribed  in  section  1569 
with  respect  to  the  dowress  of  an  undivided  share.  (Co. 
Civ.  Troc.  §  1508). 

A  party  to  an  action  for  partition,  who  has  a  right 
of  dower,  or  is  a  tenant  for  life,  or  for  years,  in  or  of  an 
undivided  share  of  the  property  sold,  is  entitled  to  re- 
ceive, from  the  proceeds  of  the  sale,  a  gross  sum,  to  be 
fixed  according  to  the  principles  of  law  applicable  to 
annuities,  in  satisfaction  of  his  or  her  estate  or  interest. 
The  written  consent  of  the  party  to  receive  such  a  gross 
sum,  acknowledged  or  proved,  and  certified,  in  like  man- 
ner as  a  deed  to  be  recorded,  must  be  filed,  at  the  time 
of,  or  before,  the  filing  of  the  report  of  sale;  otherwise 
the  court  must  direct  that,  out  of  the  proceeds  of  the 
sale,  which  belong  to  the  undivid(Hl  share  to  which  the 
estate  or  interest  attaches,  one-third,  in  case  of  a 
dowress,  and  in  any  other  case  arising  under  this  sec- 
tion, the  entire  proceeds,  or  such  a  proportion  thereof  as 
fairly  represents  the  interest  of  the  holder  of  the  parti- 
cular estate,  be  paid  into  court,  for  the  purpose  of  being 
invested  for  his  or  her  benefit.      (Co.  Civ.  Proc.  §  1569). 

Where  it  appears  that  a  party  to  the  action  has  an  in- 
choate right  of  dower  or  any  other  future  right  or  estate 
vested  or  contingent,  or  that  any  person  or  persons  not 
in  being  who  may  by  any  contingency  become  entitled 
to  any  interest  or  estate  in  the  property  sold,  the  court 
must  fix  the  proportional  value  of  the  right  or  estate 
according  to  the  law  applicable  to  annuities  and  sur- 
vivorships, or  set  aside  so  much  of  the  proceeds  of  sale 
to  which  the  contingency  attaches,  and  must  direct  that 
proportion  of  the  proceeds  of  sale  to  be  invested,  secured 
or  paid  over  in  such  manner  as  it  deems  best  calculated 
to  protect  the  rights  and  interests  of  the  parties.  (Co. 
Civ.  Proc.  §  1570). 


90  I'UACTICE. 

A  married  wonuiii  inay  release  to  her  lnisl)an(l  hor  in- 
choate rii^lit  of  (lower,  in  the  pntjtertv  direeted  lo  be  sold, 
by  a  written  instrument,  duly  ackimw  led<;ed  by  her  and 
eertitied,  as  re(iiiired  by  law  with  respect  to  the  ackiiowl- 
edjiuieut  of  a  conveyance  to  bar  her  dower;  which  must 
be  lileil  with  the  clerk.  Thereupon,  the  share  of  the  pro- 
ceetls  of  the  sale,  arisin;n  from  her  contin<»ent  interest, 
must  be  paid  to  her  husband,      (Co.  Civ.  Proc.  §  1571). 

As  to  the  manner  of  ascertaining  the  interests  of  a 
party  havinii  a  riiiht  of  dower,  either  inchoate  or  vested, 
see  chapter  tifty-one,  post.  \\'here  the  party  entitled  to 
dower  in  a  part  of  the  premises  is  also  entitled  to  the 
use  and  occupation  of  such  part  until  her  youngest  child 
l>ecomes  of  age,  the  value  of  such  interest  in  money  can 
be  ascertained  and  paid  to  her,  if  she  consent  to  release 
her  dower  and  accept  a  sum  in  gross;  and  in  such  way 
her  rights  can  be  extinguished.  {Bond  v.  McXiff,  38 
N.  Y.  Super.  Ct.  Kep.  83;  affd.  on  op.  below,  41  N.  Y. 
Super.  Ct.  Rep.  543).  Where,  however,  the  judgment 
does  not  provide  for  ascertaining  the  value  of  an  in- 
choate right  of  dower,  the  remedy  of  the  party  entitled 
to  it,  is  by  appeal.  ( Jordan  V.  Van  JJpps,  19  Ilun,  52G; 
affd.,  85  N.  Y.  427).  A  wife  cannot  be  compelled  to 
relinquish  her  dower  rights.  (Jachmn  V.  Edwards,  7 
Paige,  386) .  The  policy  of  the  courts  is  always  towards 
protecting  her  rights.  (Si mar  v.  Canada i/,  53  N.  Y. 
298).  Where  a  right  of  dower  attaches  to  the  share  of 
only  one  of  the  parties,  it  does  not  affect  the  others,  and 
they  are  relieved  from  it;  and  it  is  paid  out  of  the  pro- 
ceeds to  which  that  one  share  is  entitled.  {Ford  v. 
Knapp,  102  X.  Y.  ISo ;  Huntingto)i  v.  11  antincjton,^  Civ. 
Proc.  Rep.  182). 

Subdivision  4. — Where  Liens  Exist. 

As  we  have  seen  in  subdivision  one,  above,  where 
there  is  a  sum  chargeable  upon  any  share,  to  satisfy  a 
lieu  thereon,  it  must  be  paid  to  the  creditor,  or  retained 
subject  to  the  order  of  the  court.  That  is  tlu^  general 
practice.  ^A'here,  however,  money  is  paid  into  court  by 
the  oflhcer  nudcing  the  sale,  as  directed  by  section  1563 


PARTITION.  91 

of  the  code,  the  party  may  apply  to  the  court  for  an 
order  directing  that  the  money,  or  such  part  thereof  as 
he  chiims,  be  paid  to  him.  Upon  such  an  application, 
he  must  produce  the  following  papers  : 

1.  An  affidavit,  nmde  by  himself,  or,  if  a  sufficient 
excuse  is  shown,  by  his  agent  or  attorney,  stating  the 
true  amount  actually  due  on  each  incumbrance,  and  the 
name  and  residence  of  the  owner  of  the  incumbrance, 
as  far  as  they  are  known,  or  can  be  ascertained  with 
due  diligence. 

2.  An  affidavit,  showing  service  of  a  notice  of  the 
application  upon  each  owner  of  an  incumbrance.  Ser- 
vice of  the  notice,  within  the  state,  must  be  personal, 
or  by  leaving  it  at  the  cjwner's  residence,  with  some  i^er- 
son  of  suitable  age  and  discretion,  at  least  fourteen  days 
previous  to  the  application.  Service,  without  the  state, 
if  personal,  must  be  made  at  least  twenty  days  previous 
to  the  application.  If  the  owner  of  the  incumbrance  re- 
sides without  the  state,  and  the  place  of  his  abode  can- 
inot  be  ascertained,  with  reasonable  diligence,  notice 
may  be  serv^ed  upon  him  by  publishing  it  in  the  news- 
paper printed  at  Albany,  in  which  legal  notices  are  re- 
quired to  be  published,  once  in  each  week  for  the  four 
weeks  immediately  preceding  the  application. 

Upon  the  application,  the  court  must  make  such  an 
order  as  justice  ret^uires.  (Co.  Civ.  Proc.  §  1564).  The 
lapse  of  ten  years  after  the  docketing  of  a  judgment  does 
not  impair  the  rights  of  a  judgment  creditor  whose  lien 
existed  at  the  time  of  the  granting  of  the  interlocutory 
judgment  and  was  established  therein.  (Treaci/  v.  Ellis, 
45  App.  Div.  492;  appeal  dismissed,  102  N.  Y.  607). 

When  the  whole  amount  of  the  unsatisfied  liens  upon 
an  undivided  share,  which  were  existing  at  the  date  of 
the  order  of  reference,  has  been  ascertained,  the  court 
must  order  the  portion  of  the  money  so  paid  into  court, 
on  account  of  that  share,  to  be  distributed  among  the 
creditors  having  the  liens,  accor<ling  to  the  priority  of 
each  of  them.  AYhere  the  incumbrancer  is  not  a  party 
to  the  action,  the  clerk  or  other  officer,  by  whom  a  lien 
is  paid  off,  must  procure  satisfaction  thereof  to  be  ac- 
knowledged or  proved,  as  required  by  law,  and  must 


92  I'UACTICE. 

canst'  the  iiicuiiiltrancc  t<»  be  dul;,'  sjilisrtcd  or  ('ancellcd 
of  rcconl.  'Pile  expense  of  so  doinu  niiisl  I»e  ])ai(l  onl  of 
the  ])or(i<iii  cif  the  iiioiiev  in  conrl,  l«elon.ii"nni-  (o  llie 
party,  by  whom  the  inennibrance  was  |»ayal»le.  (Co. 
Civ.  Prof,  g  15G5). 

The  proceeding's  to  ascertain  and  setth'  the  liens  npon 
Hn  nndivich^l  share,  as  i)rescrihe<l  in  sections  1. ")(>:{,  ir)(»4 
anil  lolio,  shall  not  alfect  any  other  i)arty  to  the  action, 
or  delay  the  paying  over  or  investing  of  nioney,  to  or  for 
the  benefit  of  any  other  party,  npon  whose  share  or 
interest  in  the  property  there  does  not  appear  to  be  any 
existing  lien.      (Co.  Civ.  Proc.  §  ISGO). 

Where  a  jndgnient  rendered  in  an  action  for  i)artition, 
for  dower,  or  to  foreclose  a  mortgage  npon  real  ])rop- 
erty,  directs  a  sale  of  the  real  pro])erty,  the  oflficei'  mak- 
ing the  sale  ninst,  out  of  the  proceeds,  unless  the  judg- 
ment otherwise  directs,  pay  all  taxes,  assessments,  and 
water  rates,  which  are  liens  upon  the  property  sold,  and 
redeem  the  property  sold  from  any  sales  for  unpaid 
taxes,  assessments,  or  water  rates,  which  have  not  ap- 
[)arently  become  absolute.  The  sums  necessary  to  make 
those  payments  and  redemptions  are  deemed  expenses 
of  the  sale,  within  the  meaning  of  that  expression,  as 
used  in  any  provision  of  article  2  of  title  1  of  chapter 
XIV  of  the  code.      (Co.  Civ.  Proc.  §  1676). 

Subdivision  5. — How  Invested  for  Tenant  for  Life, 

ETC. 

Where  a  portion  of  the  proceeds,  representing  an  un- 
divided share  or  interest,  is  invested  for  the  benefit  of  a 
tenant  for  life,  or  for  years,  or  of  a  widow,  as  prescribed 
in  the  foregoing  provisions  of  this  article,  the  court  must 
cause  it  to  be  invested  in  permanent  securities,  at  in- 
terest, and  the  interest  to  be  paid,  from  time  to  time  as 
it  accrues,  to  the  person  for  whose  benefit  it  is  invested, 
while  his  or  her  right  continues.  (Co.  Civ.  Proc.  § 
1583). 


PARTITION.  93 

ARTICLE  VI. 

FINAL   JUDGMENT. 

SECTION. 

1.  What  to  contain. 

2.  Who  affected  by  final  judgment. 

3.  Security  to  refund. 

4.  Where  entered  and  recorded. 

5.  Judgment,   how  enforced. 

0.  Appeal  from  final  or  interlocutory  judgment. 

Sec.    1.    "What  to  contain. 

Upon  the  confirmation,  by  the  court,  of  the  report  of 
the  commissioners  nmlciug-  partition,  final  judgment, 
that  the  partition  be  firm  and  effectual  forever,  must  be 
rendered.      (Co.  Civ.  Proc.  §  1557). 

Enough  has  already  been  seen  in  this  chapter  to  show 
that  the  final  judgment  is  not  only  a  confirmation  of  the 
report  of  the  commissioners,  whether  actual  partition 
has  been  made,  or  the  property  has  been  sold,  but  is  also 
a  final  determination  of  the  rights  of  the  parties  as 
found  by  the  preceding  steps  in  the  action. 

The  final  judgment  must  also  direct  that  each  of  the 
parties,  who  is  entitled  to  possession  of  a  distinct  parcel 
allotted  to  him,  be  let  into  the  possession  thereof,  either 
immediately,  or  after  the  determination  of  the  particular 
estate,  as  the  case  requires.      (Co,  Civ.  Proc.  §  1558). 

It  also  determines  the  amount  of  costs  and  the  parties 
who  are  required  to  pay  them.  (Co.  Civ.  Proc.  §  1559). 
It  may  adjust  the  rights  of  the  parties  in  regard  to  the 
rents  and  profits  received  by  any  of  them.  (Co.  Civ. 
Proc.  §  1589).  But  the  judgment,  in  case  of  default, 
cannot  grant  any  relief  not  asked  for  in  the  complaint, 
as  an  accounting  for  rents  and  profits.  {Bullunnl-er 
V.  Rjjl^er,  12  Abb.  Pr.  311). 

Where  it  appears  that  partition  cannot  be  made  equal 
between  the  parties,  according  to  their  respective  rights, 
without  prejudice  to  the  rights  or  interests  of  some  of 
them,  the  final  judgment  may  award  compensation  to  be 
made  by  one  party  to  another  for  equality  of  partition. 
But  compensation  cannot  be  so  awarded  against  a  party 


1)4  i'ii.u  rici:. 

who  is  unknown,  or  whose  njinic  is  nnlvnown.  Nor  can 
it  he  awanh'd  aujiinsl  an  infanl,  nnless  it  ai>|K'ai's,  tliat 
li«'  lias  personal  i>ro|»ei-(v  snilieieni  (o  |»a.v  il,  and  that 
his  interests  will  We  pronioted  tlierehy.      (Co.  i'\\.  l*roc. 

\N  here  the  judjiineiit  contains  directions  as  to  com- 
pensation, it  slionld  he  I'easonahle.  (Post  V.  J^ost,  05 
Barh.  IIH').  The  (Minalizat  ion  may  he  made,  not  only  hy 
conipensiition  in  money,  hut  also  by  direction  as  to  the 
use  of  the  property  partitioned.  (SiHitIt  v.  Hmitli,  10 
Paige,  470).  Where  there  has  been  a  sale  of  the  prop- 
erty, and  the  sale^  is  coniirmetl  by  the  court,  a  final  judg- 
ment must  he  entered,  contirming  it  accordingly;  direct- 
ing the  officer  making  it  to  execute  the  proper  convey- 
ances, and  take  the  proper  securities  pursuant  to  the 
sale;  and  also  directing  concerning  the  application  of 
the  proceeds  of  the  sale.      (Co.  Civ.  Troc.  §  1577). 

The  final  judgment  should  settle  all  the  rights  of  the 
parties,  and  not  leave  a  portion  of  the  property  to  be 
subject  to  any  other  proceeding  in  partition.  {Post  v. 
Post,  supra ) . 

Sec.    2.    Wlio  affected  by  final  judgment. 

A  final  judgment  in  an  action  of  partition  is  binding 
and  ccmclusive  upon  the  following  persons: 

1.  The  plaintilt";  each  defendant  upon  whom  the  sum- 
mons was  serA'c^l,  eithc^r  personally,  or  without  the  state, 
or  by  publication,  pui*suant  to  an  order  obtained  for 
that  purpose,  as  prescribed  in  chapter  V  of  the  code; 
and  the  legal  representatives  of  each  party,  specified  in 
tihs  sul)division.  So  much  of  section  445  of  the  code, 
as  requires  the  court  to  allow  a  defendant  to  defend  an 
action,  aft(^r  final  judgment,  does  not  apply  to  an  action 
for  jjartition. 

2.  Each  i>erson  claiming  from,  through  or  under  such 
a  party,  by  title  accniing  after  the  filing  of  the  judg- 
ment-roll, or  after  the  filing,  in  the  proper  county  clerk's 
office,  of  a  notice  of  the  pendency  of  the  action,  as  pre- 
scribed in  article  0,  title  1,  chapter  XIV  of  the  code. 

3.  Each  person  not  in  being  when  the  interlocutory 
judgment  is  rendered,  who,  by  the  happening  of  any 


PARTITION,  95 

coutingency,  becomes  afterwards  enlitled  to  a  beneficial 
interest  attaching  to,  or  an  estate  or  interest  in,  a  por- 
tion of  the  property,  the  person  first  entitled  to  which, 
or  other  virtual  representative  whereof,  was  a  party 
specified  in  the  first  subdivision  of  this  section. 

But  this  section  does  not  apply  to  a  party,  whose 
right  and  interest  are  expressly  reserved  and  left  un- 
affected, as  prescribed  in  section  1539  of  the  code,  or  to 
a  person  claiming  from,  through,  or  under  such  a  party. 
(Co.  Civ.  Proc.  §  1557). 

Where  the  judgment  is  rendered  after  a  sale,  it  is 
binding  and  conclusive  upon  the  same  persons,  upon 
whom  a  final  judgment  for  partition  is  made  binding 
and  conclusive  by  section  1557  of  the  code;  and  it 
effectually  bars  each  of  those  persons,  who  is  not  a  pur- 
chaser at  the  sale,  from  all  right,  title  and  interest  in 
the  property  sold.      (Co.  Civ.  Proc.  §  1577). 

The  judgment  is  conclusive,  not  only  of  the  matters 
actually  determined  but  of  evers^  other  matter  which 
the  parties  might  have  litigated  and  decided  as  incident 
to  the  action ;  as  that  the  interests  of  the  owners  require 
that  the  property  be  sold.  {Jordan  v.  Van  Epps,  85  N. 
Y.  427).  If  there  is  an  error  in  such  a  case,  the  remedy 
is  by  appeal ;  and  if  no  appeal  is  taken  and  the  question 
is  not  litigated,  the  judgment  is  binding  as  to  those  mat- 
ters as  well  as  to  those  which  are  of  the  essence  of  the 
action.  The  judgment  cannot  be  attacked  collaterally. 
(Id).  Where  property  has  been  divided  among  the 
heirs,  and  the  final  judgment  entered  therein,  it  does  not 
cut  off  the  interests  of  a  creditor  of  the  ancestor,  unless 
he  was  made  a  party,  or  in  some  way  becomes  bound  dur- 
ing the  progress  of  the  action.  (Mead  V.  Jenkins,  27 
Hun,  570).  He  still  may  apply  for  a  sale  of  the  prop- 
erty to  pay  the  debts  of  the  ancestor.  (Id).  Where 
infants  have  appeared  by  guardian,  they  are  equally 
bound  as  adults.  (Prior  v.  Prior,  49  Hun,  502).  If 
the  final  judgment  is  not  appealed  from,  it  becomes  con- 
clusive upon  all  the  parties  (Id.)  ;  although  it  may  have 
been  irregular.  (Reed  v.  Reed,  46  Hun,  212;  aft'd.,  107 
N.  Y.  545;  Prior  v.  Prior,  supra).  A  final  judgment, 
made  after  full  disclosure  of  the  facts  to  the  court,  con- 


DO  PRACTICE. 

tiriuing  a  purchase  iu  his  owu  behalf  by  a  trustee  of 
iufaut  defiuihints  is  couclusive  up(»n  all  jiartics  to  the 
action.  {Cordiii  v.  Buh(r,  107  ^^  Y.  128).  Upon  the 
general  subjeel  of  the  eouclusiveness  of  judginents  iu 
partition  see  cases  citeil  iu  article  1  of  this  chapter. 
Those  parties  onl^-  who  are  joined  are  bound.  The  fact 
that  they  knew  of  the  proceedings,  cannot  bind  them  as 
privies;  on  the  principle  that  those  who  are,  or  ought  to 
be  parties,  cannot  be  i)rivies.  {Bvll  v.  (Jlttere,  14  N.  Y. 
St.  Kep.  01). 

An  actual  partition  or  sale  under  judgment,  is  effect- 
ual to  bar  the  future  contingent  interests  of  persons  not 
in  uasc,  and  this  is  true,  although  no  notice  is  published 
to  bring  in  unknown  parties,  and  though  such  parties 
may  take  as  purchasers  and  not  as  claimants  under  any 
of  the  parties  to  the  action.  {Mead  v.  MitcheU,  17  N.  Y. 
210;  Jenkins  v.  Fahey,  73  N.  X.  355;  Clemens  v. 
Clemens,  37  N.  Y.  59;  A" ir A-  v.  Kirl\  137  N.  Y\  510). 
But  Avhere  a  judgment  of  partition  or  sale  would  have 
the  effect  of  cutting  off  a  remainderman  whose  rights 
have  been  created  by  will,  the  court  should  provide  for 
such  rights  by  the  judgment;  and  if  it  does  not  so  pro- 
vide, it  cannot  bar  the  future  rights  of  such  parties. 
(Monarque  v.  Monarque,  80  N.  Y.  320;  Smith  v.  Secor, 
157  N.  Y.  402).  AA'here,  by  reason  of  mistaken  boun- 
daries, the  commissioners  do  not  make  actual  partition 
of  the  entire  property,  so  much  thereof  as  is  not  par- 
titioned, still  remains  the  property  of  the  parties  as 
tenants  in  common.      [Jones  v.  Carroll,  5  T.  &  C.  031). 

A  final  judgment  is  also  a  bar  against  each  person,  not 
a  party  who  has,  at  the  time  when  it  is  rendered,  a  gen- 
eral lien,  by  judgment  or  decree,  on  the  undivided  share 
or  interest  of  a  party,  if  notice  was  given  to  appear  be- 
fore the  referee  and  make  proof  of  liens,  as  prescribed 
in  section  1502  of  the  code,  and  also  against  each  person 
made  a  party,  who  then  has  a  specific  lien  on  any  such 
undivided  share  or  interest;  but  a  person  having  any 
such  sp(H'ific  lien  appearing  of  record  at  the  time  of  the 
filing  of  the  notice  of  the  pendency  of  the  action,  who  is 
not  made  a  party  is  not  afifected  by  such  judgment. 
(Co.  Civ.  Proc.  §  1578). 


PARTITION.  97 

Sec.    3.    Security   to   refund. 

The  court  may,  in  its  discretion,  require  any  person, 
before  lie  receives  his  portion  of  the  i)roceeds  of  th.e  sale, 
to  ij;ive  such  security  as  it  directs,  to  the  people,  or  to 
such  parties  or  other  persons  as  it  prescribes,  to  refund 
the  same,  or  a  portion  thereof,  with  interest,  if  it  there- 
after appears  that  he  was  not  entitled  thereto.  (Co. 
Civ.  Proc.  §  1584). 

A  security  taken  under  any  provision  of  this  article, 
except  as  otherwise  specially  prescribed  therein,  must 
be  taken  in  the  name  and  official  title  of  the  county  treas- 
urer of  the  county  in  which  the  property  sold  is  situated. 
He,  and  his  successors  in  office,  must  hold  the  same  for 
the  use  and  benefit  of  the  persons  interested,  subject  to 
the  order  of  the  court.      (Co.  Civ.  Proc.  §  1585). 

The  court  may  in  its  discretion,  and  upon  such  terms 
and  conditions  as  justice  requires,  make  an  order,  allow- 
ing a  person  interested  in  a  security  specified  in  section 
1585,  to  maintain  an  action  thereupon  in  the  name  of  the 
county  treasurer.      (Co.  Civ.  Proc.  §  1586). 

Sec.    4.    Where  entered  and  recorded. 

An  exemplified  copy  of  the  judgment-roll,  or  of  the 
final  judgment,  in  an  action,  for  partition,  may  be  re- 
corded, in  the  office  for  recording  deeds,  in  each  county 
in  which  any  real  property  affected  thereby  is  situated. 
(Co.  Civ.  Proc.  §  1595). 

The  judgment,  and  not  the  recording  of  it,  fixes  the 
rights  of  the  parties.  {Lynch  v.  Rome  Gas  L.  Co.,  42 
Barb.  591). 

Where  real  property,  sold  by  virtue  of  a  judgment, 
rendered  in  an  action  specified  in  section  1676  (which 
includes  partition),  is  situated  in  a  county,  other  than 
that  in  which  the  judgment  is  entered,  the  judgment 
must  be  also  entered  in  the  office  of  the  clerk  of  the 
county  wherein  the  property  is  situated,  before  the  pur- 
chaser can  be  required  to  pay  the  purchase-money,  or 
to  accept  a  deed.  The  clerk  of  the  latter  county  must 
enter  it  in  the  judgment  book  kept  by  him,  upon  filing 
7 


98  i'ljACTR'i:. 

with  him  a  uolice  iherct)!",  ri'rlilii'd   by   the  tlei-k   with 
whom  it  is  eutereil.      (Co.  Civ.  Troc.  §  1G77). 

This  sc'c'tiou  is  inti'iKh'd  as  a  irmedy  for  some  of  the 
evils  which  arose  from  the  faet  that  althou<;h  the  action 
is  triable  in  any  county  where  some  part  of  property  is 
situated  (Co.  Civ.  Proc.  g  082),  still  it  mi^ht  be  tried  in 
a  county  where  none  of  the  property  is  situated,  unless 
objection  was  made,  and  the  place  of  trial  chan«;ed  (Co. 
Civ.  I'roc.  §  985),  and  consecjuent ly  a  judi;-ment  re- 
covered might  be  entered  in  a  county  where  none  of  the 
property  was  situated.  The  i)rovisions  of  this  section 
prevent  any  such  possibility.  (Throop's  note  to  section 
1677). 

Sec.    5.    Judgment,  lio\ir  enforced. 

The  final  jud<i,nient  must  direct  that  a  party  entitled 
to  possession  be  let  into  such  possession,  either  im- 
mediately, or  after  the  determination  of  a  particular 
estate  therein.      (Co.  Civ.  Proc.  §  1558). 

Where  a  jud<>nieut  in  an  action  specified  in  this  title 
(which  includes  partition),  allots  to  any  person  a  dis- 
tinct parcel  of  real  property,  or  contains  a  direction  for 
the  sale  of  real  property,  or  confirms  such  allotment  or 
sale,  it  may  also,  except  in  a  case  where  it  is  expresslj'^ 
prescribefl  in  the  code  that  the  jud.unient  may  be  en- 
forced by  execution,  direct  the  delivery  of  the  posses- 
sion of  the  property  to  the  person  entitled  thereto.  If 
a  party,  or  his  representative  or  successor,  who  is  bound 
by  the  judj^ment,  withholds  possession  from  the  person 
thus  declared  to  be  entitled  thereto,  the  court,  besides 
puiiishino-  the  disobedience  as  a  contempt,  may,  in  its 
discretion,  by  order,  require  the  sheriff  to  put  that  per- 
son into  possession.  Such  an  order  must  be  executed, 
as  if  it  was  an  execution  for  the  delivery  of  the  posses- 
sion of  the  pro]>erty.      (Co.  Civ.  Proc.  §  1075). 

A  purchaser  under  a  judicial  sale,  cannot  be  kept  out 
of  the  possession  of  liis  i)r()])(*rty.  ITe  is  entitled  to  an 
order  requiring  the  shcrill"  to  deliver  the  possession  to 
liiui.  Such  an  order  is  a  mandate  in  tlic  nature  of  a 
writ  of  ])Ossession,  and  is  a  j^rovisional  remedy;  and  is 
similar  to  the  remedy  in  case  of  ejectment.      (See  vol. 


PARTITION.  91) 

1,  p.  751;  Boicery  t^ar.  Bunk  v.  Foster,  11  Wk.  Dig. 
493) .  Of  course  where  there  is  a  particuhir  estate  which 
is  not  att'ected  by  the  partition  or  sale,  the  purchaser 
cannot  be  put  into  iuiniediate  possession;  but  must  wait 
until  the  particular  estate  is  determined.  (Co.  Civ. 
Proc.  §  1558). 

The  power  of  the  court  to  put  a  party  into  possession, 
where  he  is  entitled  to  the  immediate  possession,  is  con- 
fined to  those  who  have  been  parties  to  the  suit  or  their 
representatives,  or  a  purchaser  under  an  order  of  sale. 
{Mei(j(js  V.  Willis,  8  Civ.  Proc.  Kep.  125).  If  a  person 
other  than  a  party,  or  one  claiming  under  or  through  a 
party,  is  wrongfully  in  possession,  the  usual  remedies 
are  to  be  resorted  to;  and  where  posses>sion  is  withheld 
by  a  person  not  a  party,  claiming  to  hold  rightfully, 
and  who  is  not  bound  by  the  terms  of  the  judgment,  he 
cannot  be  removed  sunnnarily ;  but  has  the  right  to  have 
his  claim  tried  in  the  proper  way.  [Boynton  v.  Jack- 
icuy,  10  Paige,  307).  \Vhere  a  party  withholds  posses- 
sion from  the  person  entitled  to  it,  the  court  may,  with- 
out notice,  grant  an  order  in  the  nature  of  a  writ  of 
assistance  or  of  possession.  [  Bowery  ^i«r.  Bank  v. 
Foster,  11  Wk.  Dig.  493).  If  the  writ  has  been  im- 
properly issued,  however,  the  court  will  set  it  aside,  on 
motion.  (Chamberlaine  v.  (Jholcs,  35  N.  Y.  477).  Un- 
til the  confirmation  of  the  sale,  or  of  the  commissioners' 
report  of  actual  partition  the  parties  only  have  a  con- 
tingent right  to  the  order  for  possession.  {Farmers 
Loan  d-  T.  Co.  v.  Bankers',  etc.,  Co.,  11  Civ.  Proc.  Kep. 
307). 

Sec.    6.    Appeal  from  final  or  interlocutory  judgment. 

An  interlocutory  judgment  in  partition,  the  same  as 
in  any  other  case,  cannot  be  taken  to  the  court  of  ap- 
peals; but  it  may  be  appealed  to  the  appellate  division. 
(Tompkins  v.  Hyatt,  19  N.  Y.  534;  Tilton  v.  VaU,  117 
N.  Y.  520).  But  where  final  judgment  has  been  ren- 
dered, an  appeal  therefrom  may  be  taken  to  the  court 
of  ai)])eals  (Co.  Civ.  Proc.  §  190)  ;  and  upon  such  ap- 
peal, an  interlocutory  or  intermediate  judgment  or 
order  involving  the  merits,  may  be  reviewed.     (Co.  Civ. 


100  ru At  TU'i:. 


PrcH-.  g  lolG).  Wlii'it'  liiial  Jii(li;iiic'iii  has  lioen  ren- 
dt'ivd  aftei-  the  decision  of  the  apix'lhitc  division  upon 
an  ai»i»«'al  iroiii  an  iiilciMocntorv  juduincnt,  the  party 
may  appeal  direetly  lo  the  court  of  appeals  from  the 
tinal  judwuient;  and  such  appeal  lirin.us  up  for  review 
the  decision  of  the  appellate  division  on  the  interlocu- 
tory judj^nient.  (Co.  Civ.  Proc.  §  133(1).  The  action 
of  partition  being  in  its  nature  one  so  largely  in  the 
discretion  of  the  court,  a  judgment  therein,  directing  a 
sale  instead  of  actual  partition,  will  not  be  overruled, 
unless  the  error  is  clear,  [i^vott  v.  (iiiernsey,  48  N.  Y. 
100).  But  where  a  party  has  appealed  from  a  final 
judgment,  and  after  tlie  appeal,  accepts  his  portion  of 
the  proceeds  of  tlie  sale,  he  will  be  deemed  to  have 
acquiesced  in  the  judgment,  and  his  ai)peal  will  be  dis- 
missed. (Alexander  y.  Ale./ander,  104  N.  Y.  643).  Hy 
such  acceptance  he  loses  his  right,  also,  to  attack  the 
judgment  collaterally  for  jurisdictional  defects.  (Mid- 
ler V.  Xiiiimaiiu,  85  App.  Div.  337  ).  As  we  have  seen  in 
the  preceding  article,  the  court  regards  the  report  of 
commissioners  making  actual  partition  equal  to,  if  not 
of  greater  importance  than,  the  verdict  of  a  jur\'. 
(Liring.stoH  v.  Clarkson,  4  Edw.  Ch.  59G;  Matter  of 
Pearl  St.,  19  Wend.  651). 

Where  an  appeal  is  proper,  the  practice  governing  it 
is  the  same  as  in  any  other  case;  and  has  been  thor- 
oughly examined  in  volume  II,  chapters  42  and  43.  See, 
also,  section  2,  subdivision  5,  of  the  preceding  article. 


CHAPTER  LI. 

ADMEASUREMENT   OF   DOWER. 


ARTICLE  I... How  aetion  biouglit. 
ARTICLE  II.  .Proceedings  in  the  action. 


ARTICLE  I. 

HOW    ACTION    15R0UGHT.  } 

SECTION. 

1.  History  and  nature  of  the  proceeding. 

2.  Who   may   maintain   the   action. 

3.  Who  are  proper  parties  defendant. 

4.  What  may  be  recovered. 

Sec.    1.    History  and  nature  of  the  proceeding.. 

Courts  of  coninion  law  and  courts  of  equity  originally 
had  concurrent  jurisdiction  in  proceedings  for  the  ad- 
measurement of  dower.  (I  Story  Eq.  Jur.  §  624  et 
seq.).  The  revised  statutes  provided  a  more  expediti- 
ous method  b,y  petition,  and  after  the  passage  of  the 
code  of  procedure,  a  widow  might  proceed  also  by  sum- 
mons and  complaint  in  a  civil  action,  under  the  code. 
Until  a  recent  period  a  widow  might  also  maintain  eject- 
ment for  her  dower.  The  code  of  civil  procedure,  how- 
ever, and  the  laws  ])assed  in  connection  with  it  have 
repealed  the  provisions  of  the  revised  statutes,  and  for- 
bidden the  bringing  of  an  action  of  ejectment  for  dower 
(Co.  Civ.  Proc.  §  1499),  and  the  only  method  of  proce- 
dure at  this  time  to  procure  the  admeasurement  of 
dower  is  that  prescribed  by  the  court  of  civil  procedure. 

The  right  to  dower  existed  at  common  law.  It  is 
now,  however,  regulated  by  statut<\  ( The  Real  Prop- 
erty Law,  §§  170-187).  It  is  not  necessary  here  to  ex- 
amine either  the  nature  or  extent  of  the  right  of  dower, 

(101) 


lOL*  rU  ACTR'i:. 

oi-  llir  (|U;ilili(;iti(>iis  th;il  li:i\('  coiiu'  to  exist  with  roiiard 
to  ii.  IMic  1  »i-» )(•('(  (11  uiis  tor  tlic  adiiicasurciiiciu  ol'  dowiT 
iiiav  l)('  l»i-oii_ulil  ill  tlic  supreme  coiirl  (vol.  I,  ]>.  (»rn,  aud 
in  county  ((Uirts.      (  \'ol.  I,  p.  Tl!). 

I'or  many  years  before  tlie  passaj^c  ol'  llie  code  of 
ci\il  i>roc(Mhire  siirr(>j;at<*s"  courts  iiad  jurisdiction  for 
proceed inii's  to  admeasure  dower;  l»ut  that  jurisdiction 
has  now  been  tal;en  away,  exci'pt  in  so  far  as  tlie  surro- 
gates's  court  is  ^.^iveu  power  by  subdi\  isiou  3  of  section 
-I71>3  of  the  co(h'  to  ascertain  the  amount  (d"  dower  upon 
the  Side  of  a  decedent's  real  proiK^rly  for  the  payment 
of  debts. 

'IMie  action  for  admeasurement  of  dower  is  a  local 
action  (vol.  11,  p.  iL'O),  and  if  an  issue  of  fact  is  joined 
in  it,  it  is  triable  by  a  jury,  in  the  usual  manner.  (Vol. 
1 1,  ]>.  -IL* ).  The  proceedings  in  the  action  are  the  same 
as  the  usual  proceediniis  in  other  civil  actions,  except 
so  far  as  they  are  dill'erently  prescribed  by  the  code  of 
civil  procedure. 

Sec.    2.    ^V]lo   may  maintain   the   action. 

The  widow,  of  coui'se,  may  bring  the  action  for  dower; 
and  it  nmy  also  be  maintained  by  her  assignee,  or  by  a 
receiver  in  supplementary  proceedings,  to  whom  her 
right  of  dower  has  Ikh^u  assigned.  {Puync  v.  Becker, 
ST  X.  V.  153  I.  The  regulations,  with  regard  to  the  time 
within  which  the  action  must  be  brought,  are  found  in 
v(dume  I  at  pages  84,  110.  Section  151)0  of  the  code, 
there  set  forth  in  full,  has,  since  the  appearance  of 
volume  I,  been  held  to  be  an  exclusive  statute  of  limita- 
tions, and  not  to  be  affected  by  section  401  of  the  code, 
])roviding  that  absence  from  the  state  is  not  a  part  of 
the  time  limited.  (  Weti/en  v.  /'<>•/.•.  ITS  X.  Y.  223). 
The  right  of  the  widow  to  bring  the  action  for  the  ad- 
measurement of  dower,  is  not  barred  by  a  receipt  by  her 
of  one-third  of  the  rent  of  real  estate  for  several  years 
aft<  r  th(^  death  of  her  husband.  (Aik))niii  v.  Harsell, 
OS  X.  Y.  1S(>).  Xo  demand  is  necessary  hy  her  before 
bringing  the  action  {HUicoll  v.  Mosier,  T  X.  Y.  201); 
unless  it  is  brought  against  any  other  i)erson  than  an 
heir,  and  tluMi  a  demand  is  onlv  necessarv  to  enable  her 


ADMEASUREMENT   OF   DOWEU.  103 

to  recover  damages  for  withholding  it.  (Co.  Civ.  Proc. 
§  IGOO;  Uonlen  v.  (loidcu,  80  App.  Div.  258).  The 
action  abates  by  her  death  before  interlocutoi'v  judg- 
ment. [McKvvH  v.  /'/,s7/^  33  Him,  28;  affd.  without  op., 
98  >s.  Y.  645).  lu  that  case  a  default  had  beeu  made, 
aud  the  matter  was  pending  before  a  referee,  when  the 
plaintiff  executed  and  acknowledged  a  consent  to  re- 
ceive a  gross  sum  in  lieu  of  dower,  and  afterwards  died ; 
and  it  was  held  that  she  had  not  jet  acquired  a  right  to 
receive  the  gross  sum,  and  that  the  action  could  not  be 
carried  on  by  her  personal  representatives.  Whether 
mesne  profits  of  the  dower  interest  can  be  recovered  by 
the  representatives  of  a  deceased  ^^'idow,  where  she  dies 
before  such  dower  is  assigned,  though  after  suit  brought 
therefor,  seems  not  to  have  been  S(iuarely  decided;  an 
exhaustive  discussion  of  this  (question  and  collection  of 
authorities  will  be  found  in  the  opinion  of  Mr.  Justice 
McLennan  in  Armstrong  v.  Union  ColJcf/e  (55  App. 
Div.  302).  Of  course,  the  widow's  death  after  the  an- 
nouncement of  a  decision  does  not  abate  the  action,  and 
the  formal  order  or  jiulgment  on  the  decision  may  be 
entered  after  her  death  under  such  circumstances. 
(Fulton  V.  Fulton,  8  Abb.  N.  C.  210;  Robinson  v.  Govers, 
138  N.  Y.  425).  By  the  revised  statutes,  if  the  widow 
did  not  take  proceedings  to  procure  the  admeasurement 
of  her  dower  within  a  certain  time  after  notice  given  to 
her  so  to  do,  other  persons  w  ho  were  interested  in  the 
matter  might  commence  the  proceeding.  (2  Kev.  Stat. 
489).  These  provisions  of  the  revised  statutes  have 
been  repealed ;  and  the  code  of  civil  procedure  now  pro- 
vides for  an  action  by  the  owner  of  the  real  property 
against  the  widow  who  claims  to  have  a  right  of  dower, 
to  compel  the  determination  of  her  claim.  (Co.  Civ. 
Proc.  §§  1647-1649).  These  proceedings  will  be  con- 
sidered in  the  chapter  on  the  determination  of  claims  to 
real  property. 

Sec.    3.    Wlio   are  proper  parties   defendant. 

This  subject  is  fully  discussed  in  volume  I  at  pages 
174,  175.  The  actual  occupant  must,  in  all  cases  be 
made  a  party  defendant,  although  he  is  only  a  tenant  for 


104  I'UACTll'E. 

years  in  i)oss('ssion,  under  a  lea.se.      {JJUicotl  v.  Mo'^'k  r, 
7  X.  Y.  -JOl). 

Sec.    4.    Wliat  may  be  recovered. 

The  w  itlow  is  entitled  to  a  life  estate  in  the  ]»r(Mnises. 
Tjion  proceediniis  to  admeasure  hei*  dower,  she  is  en- 
titled to  have  one-third  of  such  estate  set  off  to  her;  or, 
in  cei'tain  cases,  she  is  (lit  it  led  to  have  one-third  of  the 
rental  value  <»r  the  real  i»ro[)ertv  to  which  her  I'i^ht  of 
dower  attaches  (Co.  Civ.  Proc.  §  H;1;J)  ;  or  she  may  re- 
cover a  ^ross  sum  in  certain  cases,  whc  re  she  consents 
to  take  it.  (Co.  Civ.  Proc.  §  1617).  If  she  consents  to 
take  a  iii'oss  sum,  and  it  appears  that  the  proi»erty  can- 
not he  divided,  she  is  entitled  to  have  it  sold,  and  to  re- 
c(  ive  a  certain  portion  of  the  proceeds  of  the  same.  ( Co. 
Civ.  Proc.  §  1()1!)).  The  ^ross  sum  to  which  she  is  en- 
titled is  to  be  estimated  on  one-third  of  the  value  of  the 
land  at  the  date  of  its  alienation.  ( ^idwaij  v.  ^idicay, 
52  llun,  22;  s.  v.,  23  X.  Y.  St.  Kep.  'M)r^).  When  lands 
are  set  off  to  the  widow  for  her  dower,  she  is  entitled 
to  receive  them  free  of  taxes  or  assessments  due  from 
her  hushand.  in  his  lifetime,  if  there  is  personal  estate  of 
the  hushand  sufficient  to  pay  such  taxes.  {Hinrhon  v. 
Feck,  56  Barb.  251;  Vandci-beck  v.  Citij  of  Rochester, 
122N.  Y.  285). 

AVhere  a  widow  recovers,  in  an  action  therefor,  dower 
in  property,  of  which  her  husband  (lie<l  seized,  she  may 
also  recover,  in  the  same  action,  damajics  for  withhold- 
ing her  dower,  to  the  amount  of  one-third  of  (he  annual 
value  of  the  mesne  profits  of  the  property,  with  interest; 
to  be  computed,  where  the  action  is  aj>ainst  the  heir, 
from  her  husband's  death,  or,  where  it  is  against  any 
other  pi^rson,  from  the  time  Avhen  she  demanded  her 
dower  of  the  defendant;  and,  in  each  case,  to  the  time 
of  the  trial,  or  ap])lication  for  judgment,  as  the  case  may 
be;  but  not  exceeding  six  years  in  the  whole.  The  dam- 
ages shall  not  include  any  thing  for  the  use  of  perma- 
nent improvements,  made  after  the  death  of  the  hus- 
band.     (Co.  Civ.  Proc.  §  1600). 

The  right  to  damages  for  withholding  dower  did  not 
exist  at  common  law;  it  arises  only  out  of  the  statute, 


ADMEASUREMENT   OF    1K)WER.  105 

and  can  only  be  recovered  iu  cases  where  it  is  allowed 
b}^  the  statute,  and  only  as  an  incident  to  the  recovery 
of  dower.  {Kyle  v.  Kyle,  67  N.  Y.  400).  This  rule, 
however,  does  not  prevent  a  widow,  who  has  assented  by 
mistake  to  the  execution  of  a  conveyance  by  her  husband 
of  certain  lands,  from  having  an  accouutiuii  as  to  the 
proceeds  of  the  sales  of  such  lands,  where  it  appeared 
that  they  had  passed  into  the  hands  of  hona  pile  pur- 
chasers who  \\'ere  discharged  of  her  claim  for  dower. 
{Mitthuus  V.  *SV//(/c/r,  31  Hun,  590;  s.  c.  on  subsequent 
appeal,  38  Hun,  560 ;  revd.  on  other  grounds,  105  N.  Y. 
332).  Damages  for  the  withholding  of  the  dower  may 
be  recovered  against  a  grantee  [i.  e.,  a  person  other  than 
an  heir)  from  the  time  of  the  demand  for  dower  until 
the  time  of  trial  or  application  for  judgment,  notwith- 
standing the  alienation  of  the  land  by  the  grantee  pfior 
to  the  trial  or  judgment.  {Price  v.  Price,  54  Hun,  349 ; 
revd.  on  other  grounds,  124  N.  Y^.  589 ) .  Where  prem- 
ises in  which  dower  is  sought  to  be  admeasured,  are  sub- 
ject to  a  mortgage  executed  by  the  husband  and  wife, 
she  can  only  be  endowed  of  the  equity  of  redemption; 
and  in  such  a  case,  her  arrears  of  dower  will  be  com- 
puted by  deducting  from  one-third  of  the  rents  and 
profits  over  and  above  necessary  repairs,  taxes,  etc.,  one- 
third  of  the  interest  on  the  amount  due  on  the  mortgage 
at  the  time  the  defendant  ac(][uired  title  to  the  premises. 
(Russell  v.  Austin,,  1  Paige,  192).  Where  her  right  to 
dower  is  subject  to  a  mortgage  which  is  not  due,  and  the 
owner  of  which  declines  to  receive  it,  the  widow  must, 
as  between  her  and  the  owner  of  the  equity  of  redemp- 
tion, contribute  suflficient  from  time  to  time  to  keep 
down  one-third  of  the  interest  on  the  amount  due,  {Bell 
V.  Mayor,  etc.,  10  Paige,  49 ) . 

Where  a  widow  recovers  dower,  in  a  case  not  specified 
in  section  1600,  she  may  also  recover,  in  the  same  action, 
damages  for  withholding  her  dower,  to  be  computed 
from  the  commencement  of  the  action ;  but  they  shall 
not  include  anything  for  the  use  of  permanent  improve- 
ments, made  since  tln^  property  was  aliened  by  her  hus- 
band. In  all  other  respects,  the  same  must  be  computed 
as  prescribed  in  that  section.      (Co.  Civ.  Proc.  §  1601). 


100  i*KA(  rici:. 

Sections  1000  and  1001  do  not  inillHtrizc  tho  rocovory, 
a<;jiiust  a  (Icl'ciidanl  who  is  Joiucd  with  ollicrs,  of  dani- 
a«»;es  for  willilnddiiiii  dower,  in  any  ])orlion  of  the  jn'op- 
crty  not  occupied  or  claimed  l»y  liini.  (Co.  Civ.  IM-oc. 
§  I'OOIM. 

^^'llere  a  widow  recovers  dower  in  real  property 
ali(Mied  by  the  heir  of  her  hnsl»and,  she  may  recover,  in 
a  separate  action  a<»aiust  him,  her  dama<;es  for  with- 
holdino-  her  dower,  from  the  time  of  the  death  of  her  hus- 
band to  the  time  of  the  alienation,  not  exctHMlin*'-  six 
years  in  the  whole.  The  sum  recovered  from  him  must 
be  deducted  from  the  sum,  w^hich  she  would  otherwise 
be  entitled  to  recover  from  the  <irantee;  and  any  sum 
recovered  as  damages  from  the  orantee,  must  be  de- 
ducted from  the  sum,  which  she  would  otherwise  be  en- 
titlj'd  to  recover  from  the  heir.      (Co.  Civ.  Proc.  §  1003). 

Section  1003  only  applies  to  cases  where  the  land  has 
been  alienated  by  the  heir. 

^^'here  a  widow,  not  having  a  right  to  dower,  recovers 
dower  against  an  infant,  by  the  default  or  collusion  of 
his  guardian,  the  infant  shall  not  be  prejudiced  thereby; 
but  when  he  comes  of  full  age,  he  may  bring  an  action 
of  ejectment  against  the  widow,  to  recover  the  property 
so  wrongfully  awarded  for  dower,  with  damages  from 
the  time  when  she  entered  into  possession,  although  that 
is  more  than  six  years  before  the  commencement  of  the 
action.      (Co.  Civ.  Proc.  §  1005). 


ADMEASUREMENT   OF   DOWER.  107 

ARTICLE  II. 

PROCEEDINGS    IN    THE   ACTION. 
SECTION. 

1.  Pleadings. 

2.  Proceedings  before  judgment. 

3.  Interlocutory   judgment. 

4.  Proceedings  before  commissioners. 

5.  Report  of  commissioners  or  referee. 

6.  Fees  and  expenses. 

7.  Final   judgment. 

8.  Right  of  widow  after  judgment. 

Sec.    1.    Pleadings. 

The  pleadings  iu  the  action  for  the  admeasurement  of 
dower  are  the  same  as  those  in  any  other  civil  action. 
What  must  be  contained  in  the  complaint  is  stated  iu 
volume  I  at  page  401.  A  demand  of  the  dower  need  not 
be  alleged  {EU'woit  v.  M osier,  7  N.  Y.  201);  except 
where  the  land  has  been  aliened  by  the  husband  in  his 
lifetime,  and  damages  are  sought  to  be  recovered  from 
the  alienee;  in  which  case  the  plaintiff  can  only  recover 
damages  from  the  date  of  the  demand.  (Co,  Civ.  Proc. 
§  1600).  This  section  of  the  code  seems  to  change  the 
rule  in  this  regard  from  what  it  was  at  common  law, 
where  it  was  held  that  an  omission  of  the  widow  to  de- 
maud  her  dower  would  not  prejudice  her  claim  to  dam- 
ages, but  the  tenant  to  excuse  himself  must  plead  that 
he  was  at  all  times  ready  to  pay  them.  (Hitchcncl-  v. 
Harrington,  G  Johns.  290).  The  rules  of  pleading  laid 
down  with  regard  to  any  other  action,  apply  to  this. 

The  answer  may  controvert  any  fact  alleged  by  the 
plaintitf.  TIk^  defendant  may  deny  seizin  of  the  hus- 
band, althcmgh  he  is  a  grantee  of  the  husband  by  a  war- 
ranty deed.  (Finn  v.  Sleight,  8  Barb.  401;  Sparrow  v. 
Kingman,  1  N.  Y.  242).  Earlier  cases  on  this  subject 
which  hold  to  the  contrary  of  these,  are  overruled. 

The  acci^ptance,  by  a  widow,  of  an  assignment  of 
dower,  in  satisfaction  of  her  claim  upon  the  jiroperty  in 
question,  bars  an  action  for  dower,  and  may  be  pleaded 
by  any  defendant.      (Co.  Civ.  Proc.  §  1004). 


108  I'ljA*  ri("i:. 

All  ;i('c('i)1;iii(('  of  the  rents  and  jn'ntits  of  one-third  of 
the  |)n  iiiises  for  sexcral  veai's  (h)es  not  har  the  rij^ht  to 
(h>wer.  \  All:  III  (I  II  v.  Ihiisill.WX  N.  \.  iSd).  A  (h'fend- 
ant  who  is  a  grantee  of  the  hnsl)an(l  cannot  set  nj)  a 
iMoiiiia^e  which  was  a  lien  npon  the  hind  at  the  time  of 
inai'i-iaue  in  hai*  of  the  wi«h>w's  ehiini  for  d(»wer.  ( litirl- 
h  II  V.  Miistiiirr,  '2S  Ilnn,  :J35). 

Sec.    2.    Proceedings   before    judgment. 

In  a  pro])er  case  a  receiver  may  be  appointc^l  in  the 
action.  (  /'J(/<iii  v.  \l>//.s//.  43  N.  Y.  Super,  i't.  Hep.  402). 
In  the  case  last  cit(<l  it  api)eared  that  the  (U'fendant  who 
was  in  possession  of  the  i)reniises,  which  consisted  of 
houses  and  lots,  had  been  folleetinj*-  a  larj^-e  amount  of 
money  for  rent,  for  which  he  refused  to  account ;  and 
that  his  interest  in  the  premises  was  heavily  mortuaged; 
such  facts  the  courts  hold  warrant  the  appointment  of  a 
receiver  durinu  the  pendency  of  tln^  action.  Waste  nuiy 
be  restrained  pending  the  action.  (Co.  Civ.  Proc.  § 
1681  ;  vol.  I,  pp.  578,  .198).  The  court  may  order  a  sur- 
vey in  a  pro])er  case.  (Chap.  41),  Art.  Ill,  §  3,  ante). 
The  rules  with  regard  to  appearance  and  notice  and 
trial,  and  the  other  proceedings  in  the  action  are  the 
same  as  in  other  civil  actions.  The  action  is  triable 
by  jury.  (Vol.  II,  p.  212).  When  so  tried,  there  must 
be  a  special^erdict  finding  the  facts  or  a  general  verdict. 
{Yddncji  V.  Thorn j»«)H ,  44  Hun,  1 ).  If  default  is  made, 
judgment  can  only  be  taken  upon  application  to  the 
court.  (Vol.  II,  pp.  710,  714).  If  there  are  infant 
rtef(Midants,  })roof  of  the  material  facts  must  be  taken 
before  the  court  or  a  referee.  (Diri/rr  v.  J)iri/er,  13 
Abb.  Pr.  X.  S.  269).  It  is  safer  to  take  proof  of  the 
facts  in  all  cases;  although  it  is  (juestionable  whether 
that  is  not  dispensed  with  by  the  first  part  of  section 
1607  of  the  code,  which  is,  that  if  the  defendant  makes 
default  in  appearing  or  pleading,  or  if  the  right  of  the 
plaintiff  to  dower  is  not  disputed  by  the  answer,  inter- 
locutory juduinent  must  be  rendered.  (Co.  Civ.  Proc. 
§  1607).  This  section  was  passed  since  the  decision  of 
the  case  last  cited.     In  an  action  for  dower,  the  plaintiff 


ADMEASUREMENT   OF   DOWKU.  109 

may,  at  any  time  before  an  interlotutory  judgment  is 
rendered,  by  reason  of  the  defendant's  default  in  appear- 
ing or  pleading-,  or,  where  an  issue  of  fact  is  joined,  at 
any  time  before  the  commencement  of  the  trial,  file  with 
the  clerk,  a  consent  to  accept  a  gross  sum,  in  full  satis- 
faction and  discharge  of  her  right  of  dower  in  the  real 
property  described  in  the  complaint.  Such  a  consent 
must  be  in  writing,  and  acknowledged  or  proved,  and 
certified,  in  like  manner  as  a  deed  to  be  recorded.  A 
copy  thereof,  with  notice  of  the  filing,  must  be  ser^^ed 
upon  each  adverse  party  who  has  appeared,  or  who  ap- 
pears after  the  filing.      (Co.  Civ.  Proc.  §  1617). 

The  gross  sum  to  which  she  is  entitled  is  ascertained 
according  to  the  then  value  of  an  annuity  of  five  per 
cent  on  the  principal  sum  during  her  probable  life,  ac- 
cording to  the  Portsmouth  or  Northampton  tables. 
(Genl.  Rule,  70). 

At  any  time  after  a  consent  is  filed,  as  prescribed  in 
section  1617,  and  before  an  interlocutory  judgment  is 
rendered,  any  defendant  may  apply  to  the  court,  upon 
notice,  for  an  order  granting  him  leave  to  pay  such  a 
gross  sum.  Thereupon  the  court  umy,  in  its  discretion, 
and  upon  sucii  terms  as  justice  requires,  ascertain  the 
value  of  the  plaintiff's  right  of  dower  in  the  property, 
b}'  a  reference  or  otherwise,  and  make  an  order,  direct- 
ing payment,  by  the  applicant,  of  the  sum  so  ascer- 
tained, within  a  time  fixed  by  the  order,  not  exceeding 
sixty  days  after  service  of  a  copy  thereof;  and  directing 
the  execution  by  the  plaintiff  of  a  release  of  her  right  of 
dower,  upon  receipt  of  the  money.  Obedience  to  the 
order  may  be  enforced,  either  by  punishment  for  con- 
tempt, or  by  striking  out  the  pleading  of  the  offending 
party,  and  rendering  judgment  against  him  or  her  or 
in  both  modes.      (Co,  Civ.  Proc.  §  1618). 

Where  the  plaintiff's  consent  has  been  filed,  as  pre- 
scribed in  section  1617,  and  she  is  entitled  to  an  inter- 
locutory judgment  in  the  action,  the  court  must,  upon 
the  application  of  either  party,  ascertain,  by  a  reference 
or  otherwise,  whether  a  distinct  parcel  of  the  property 
can  be  admeasured  and  laid  off  to  the  plaintiff,  as  tenant 


no  I'KAlTU'i:. 

in  (lower,  without  material  iiijurv  to  the  interests  of  the 
parties.      (Co.  Tiv.  I'roc.  ^  Hllih. 

Althou^li  the  widow's  coMscnl  lo  acccpl  a  ^ross  sum 
in  lieu  of  (lower  is  not  lih'd  until  after  tlie  entry  of  the 
interloeiitory  judiiiiieni,  if  it  is  liled  prior  to  the  entry 
of  tiual  jud<j;inent  coulii'iiiiii.u  llic  referee's  report  of  sale, 
the  irre.iiiilarity  is  cured,  in  the  al)S('nse  of  anythin*;-  to 
show  that  the  defeiKhints  have  hecu  prejudieed  therehy. 
{Freeman  v.  Ahvarn,  04  Ai)p.  Div.  509). 

Sec.    3.    Interlocutory   judgment. 

Subdivision  1. — For  Admeasurement  of  Dower. 

Whenever  the  ri«>ht  to  dower  has  been  established, 
either  ui)on  a  default,  in  a  way  satisfactory  to  the  court, 
or  by  a  verdict,  rei)ort  or  decision  at  the  trial,  an  inter- 
locutory judiiiuciit  must  be  rendered;  which,  except  as 
otherwise  prescribed,  must  direct  that  the  plaintiff's 
dower  in  the  property,  particularly  describiui;  it,  be 
admeasured  by  a  referee,  designated  in  the  judgment,  or 
by  three  reputable  and  disinterested  frcM'holders,  desig- 
nated therein  as  commissioners  for  that  purpose.  (Co. 
V\\.  Troc.  §  1«07). 

The  rule  is  well  settled  in  this  state  that  when  lands 
are  aliened  by  the  husband  during  the  coverture,  his 
widow  is  entitled  to  be  endowed  of  one-third  of  the  value 
of  said  lands  at  the  time  of  the  alienation.  In  such 
cases  the  correct  practice  is  to  ascertain  on  the  trial  the 
time  at  which  the  premises  were  aliened,  and  if  their 
value  has  increased  since  the  time  of  alienation  from 
causes  other  than  improvements  made  on  the  premises 
after  that  time,  to  ascertain  their  value  at  the  time  of 
th<'  ali(  nation,  and  the  jtidguumt  shoiihl  provide^  for  ad- 
measurement according  to  that  value.  [Marble  v. 
Leivis,  53  Barb.  432 ) .  Actual  admeasurement  must  be 
directed  in  all  cases,  unless  the  plaintitf  has  ottered  to 
take  a  gross  sum,  or  the  court  has  ascertained  that  a 
distinct  parcel  cannot  be  set  off.  (Co.  Civ.  Proc.  § 
1610;  (yDoiujlicrtjj  v.  Remington  Paper  Co.,  1  N.  Y. 
St.  Kep.  523;42  Ilun,  193). 

A  referee  to  try  the  issues  cannot  take  proof  as  to  the 
practicability  of  admeasurement,  unless  that  question 


ADilEASUREMEXT   OF   DOWEK.  Ill 

has  been  raised  by  the  pleadings.  Where  the  case  is 
tried  by  the  court,  the  question  of  actual  admeasure- 
ment may  sometimes  be  investigated  and  decided,  so 
that  the  rights  of  the  parties  and  the  necessity  of  sale 
can  be  determined  upon  a  single  hearing  before  inter- 
locutory judgment;  but  it  is  rarely  practicable  to  pur- 
sue this  course,  as  the  feasibility  of  the  actual  partition 
may  often  greatly  depend  upon  the  rights  of  the  several 
parties,  as  finally  determined  in  the  interlocutory  judg- 
ment; and  the  question  of  partition  cannot  be  intelli- 
gently considered  until  that  question  has  been  deter- 
mined. The  better  practice  in  all  cases  is  to  order  a 
reference  to  ascertain  whether  actual  admeasurement  or 
partition  can  be  had  after  the  decision  as  to  the  rights  of 
the  parties.  {0' Dougherty  v.  Remington  Paper  Co.,  42 
Hun,  192). 

In  a  case  specified  in  section  1617  of  the  code,  where 
the  property,  or  a  part  thereof,  consists  of  one  or  more 
vacant  or  unimproved  lots,  the  plaintiff's  consent  may 
contain  a  stipulation  to  take  a  distinct  parcel  out  of 
those  lots,  in  lieu  of  a  gross  sum.  In  that  case,  the  in- 
terlocutory judgment,  instead  of  directing  a  sale,  may 
direct,  if  it  appears  to  be  just  so  to  do,  that  commis- 
sioners be  appointed  to  admeasure  and  \'Ay  off  to  the 
plaintiff  a  distinct  parcel,  out  of  the  vacant  or  unim- 
proved lots;  and,  if  there  is  any  other  property,  that 
it  be  sold,  and  a  gross  sum  be  paid  to  her  out  of  the  pro- 
ceeds thereof  as  prescribed  in  the  sections  1621,  1622 
and  1623.  The  plaintiff's  title  to  each  distinct  parcel, 
admeasured  and  laid  off  to  her,  as  prescribed  in  this 
section,  is  that  of  an  estate  of  inheritance  in  fee  simple. 
In  admeasuring  and  laying  off  the  same,  the  commis- 
sioners must  consider  quantity  and  quality  relatively, 
according  to  the  value  of  the  plaintiff's  right  of  dower 
in  the  vacant  or  unimproved  lots,  out  of  ^Vhich  the  ad- 
measurement is  to  be  made;  which  must  be  ascertained, 
in  proportion  to  the  value  of  those  lots,  as  prescribed  in 
sections  1621,  1622  and  1623,  for  fixing  a  gross  sum  to 
b(  paid  to  her  out  of  the  proceeds  of  a  sale.  (Co.  Civ. 
Proc.  §  1620). 


112  I'KACTK."!:. 

SiT.Divisiox  2. — V()\i  Sale  of  Premisks. 

If  it  appears  (o  the  courl,  thai  a  (lislincl  i>areel  cannot 
be  so  admeasured  and  laid  off,  the  interhxntor.v  judi;- 
meut  must,  except  in  the  ease  speeilied  in  section  HJl'O, 
direct  that  the  property  be  sold  by  the  sheriff,  or  l»y  a 
referee  desijiuated  therein;  and  that,  upon  the  coutirma- 
tion  of  the  sale,  each  party  to  the  action,  and  every  per- 
son deriving-  title  from,  through  or  under  a  party,  after 
the  tiling  of  the  judgment-roll,  or  (d"  a  notice  of  the  pen- 
dency of  the  action,  as  prescribed  in  sections  KJTO  to 
1GS8,  inclusive,  be  barred  of  and  from  any  right,  title, 
or  interest  in  or  to  the  property  sold.  (Co.  Civ.  Proc. 
§1G19). 

This  section  applies  only  in  cases  where  a  partition 
cannot  be  ha<l,  and  where  the  plaintiff  has  not  received 
a  gross  sum  in  lieu  of  dower. 

Sec.    4.    Proceedings  before   commissioners. 

Before  an  interlocutory  jud^nent  is  rendered  for  the 
sale  of  the  ])roperty,  the  court  must  direct  a  reference  to 
ascertain  whether  any  person,  not  a  party,  has  a  lien 
upon  the  property,  or  any  part  thereof.  Except  as  other- 
wise ex])ressly  prescribed,  the  proceedings  upon  and  sub- 
se(|uent  to  the  reference  must  be  the  same,  as  prescribcnl 
in  an  action  of  partition  where  a  reference  is  made  as 
l)res<'rib(Ml  in  section  1561  of  the  code.  (Co.  Civ.  Proc. 
g  1021). 

Where  the  interlocutory  judgment  directs  a  sale,  if 
the  right  of  dower  of  the  plaintiff  is  inferior  to  any  other 
lien  upon  the  property,  the  judgment  may,  in  the  dis- 
cretion of  the  court,  direct  that  the  property  be  sold 
either  subject  to  the  lien,  or  discharged  from  the  lien; 
and,  in  the  latter  case,  that  the  officer  nmking  the  sale 
pay  the  amount  of  the  lien,  out  of  the  proceeds  of  the 
sale.      (Co.  Civ.  Proc.  §  1022). 

As  to  the  manner  of  conducting  the  sale,  see  chapter 
50,  ante.  All  the  commissioners  must  meet  together  in 
the  performance  of  their  duties,  but  when  so  met,  the 
acts  of  a  majority  are  valid.      (Co.  Civ.  Proc.  §  1610). 


ADMEASUREMENT   OF   DOWER.  113 

Each  of  the  commissioners,  or  the  referee,  as  the  case 
retjuires,  must,  before  entering  upon  the  execution  of 
his  duties,  subscribe  and  take  an  oath,  before  an  officer 
speciticd  in  section  812  of  the  code,  to  the  etfect,  that  he 
will  faithfully,  honestly  and  impartially  discharge  the 
trust  reposed  in  him.  The  oath  must  be  filed  with  the 
clerk,  before  a  commissioner  or  a  referee  enters  upon 
the  execution  of  his  duties.  The  court  may,  at  any  time, 
remove  the  referee,  or  either  of  the  commissioners.  If 
either  of  them  dies,  resigns,  or  neglects  or  refuses  to 
serve,  or  is  removed,  the  court  may,  from  time  to  time, 
appoint  another  person  in  his  place.  (Co.  Civ.  Proc. 
§  1008). 

Notice  of  the  meetings  of  the  commissioners  should  be 
given;  but  a  failure  to  give  notice  is  only  an  irregularity, 
and  it  is  no  ground  for  a  refusal  to  confirm  the  report, 
unless  it  appears  that  injustice  has  been  done  to  the 
party  complaining.  {t^iiiitJi  v.  ySmith,  6  Laus.  313). 
Where  the  commissioners  met  at  the  house  of  the  heir, 
and  requested  him  to  show  the  premises ;  and  he  refused 
to  have  anything  to  do  with  the  business;  that  is  a  suffi- 
cient notice,  and  it  is  a  waiver  of  all  further  notice. 
(Matter  of  WatMns,  9  Johns.  245).  Notice  to  the  attor- 
ney of  a  party  is  sufficient,  {^tetcart  V.  Smith,  4  Abb. 
Ct.  App.  Dec.  306).  The  referee  or  the  commissioners 
must  execute  their  duties  in  the  following  manner: 

1.  They  must,  if  it  is  practicable,  and,  in  their  opinion, 
for  the  best  interests  of  all  the  parties  concerned,  ad- 
measure and  lay  off,  as  speedily  as  possible,  as  the  dower 
of  the  plaintiff,  a  distinct  parcel,  constituting  the  one- 
third  part  of  the  real  property  of  which  dower  is  to  be 
admeasured,  designating  the  part  so  laid  off  by  posts, 
stones,  or  other  permanent  monuments. 

2.  In  making  the  admeasurement,  they  must  take  into 
consideration  any  permanent  improvements,  made  upon 
the  real  property,  after  the  death  of  the  plaintiff's  hus- 
band, or  after  the  alienation  thereof  by  him;  and,  if 
practicable,  those  improvements  must  be  awarded  within 
the  part  not  laid  off  to  the  plaintiff;  or,  if  it  is  not  prac- 
ticable so  to  award  them,  a  deduction  must  be  made 

8 


X 


114:  rUACTICE. 

from  the  [)ai'l  lai«l  oil'  to  I  lie  [daiutilT,  proportionate  to 
the  benetit  which  .she  will  derive  Iroiu  so  iiiiicli  of  those 
iinproveineuts,  as  is  included  in  llic  part  laid  off  to  lier. 

3.  If  it  is  not  i)racticable,  (n*  if,  in  the  ojunion  of  the 
referee  or  eoniinissioners,  it  is  not  for  the  best  interests 
of  all  the  parties  concerned,  to  admeasure  and  lay  ott"  to 
the  ]ilaintitf  a  distinct  ])arcel  of  the  property,  as  ])re- 
scribed  in  the  foreii'oinii,'  subdivisions  of  this  section, 
they  must  re])ort  that  fact  to  the  court. 

Jr.  They  nuiy  emj»loy  a  surveyor,  with  the  nec(^ssary 
assistants,  to  aid  in  the  admeasurement.  (Co.  Civ. 
Proc.  §  1009). 

The  widow  is  entitled  to  have  a  part  set  off  to  her, 
cl(  ar  of  assessments  and  taxes  which  iiave  accrued  in  the 
life-time  of  the  husband,  if  there  is  personal  property 
sufficient  to  pay  them.  {Vandrrhcck.  v.  Citij  of 
Roclicstrr,  122  X.  Y.  285).  Where  the  premises  in 
which  dower  is  to  be  admeasured  consist  of  several  par- 
cels, in  different  localities,  some  of  which  have  been 
transferred  to  bona  fide  purchasers,  the  commissioners 
may  properly  lay  off  the  plaintiff's  dower  from  that  por- 
tion of  the  property  which  still  belonos  to  the  heir,  with- 
out resorting  to  the  other  property,  {Price  v.  Price, 
41  Hun,  486). 

In  setting  off  the  dower,  the  widow  is  not  to  be  al- 
lowed for  the  natural  increase  of  value,  since  the  aliena- 
tion by  the  husband,  or  for  permanent  improvements 
since  that  time.  {Walker  v.  XchiijiJcr,  10  Wend.  480). 
If  the  husband  has  mortgaged  the  land,  but  continued 
in  possession,  and  afterwards  released  the  equity  of  re- 
demption to  the  mortgagee,  th(^  time  of  release  is  deemed 
to  be  the  period  of  alienation,  at  Avhich  the  value  is  to  l>e 
estimated.  {Hale  v.  James,  6  Johns.  Ch.  258).  If  there 
is  a  mortgage  upon  the  premises  superior  to  the  right  of 
dower,  her  dower  must  be  laid  oft"  to  her  subject  to  the 
mortgage.  {Bell  v.  Mayor,  etc.,  10  Paige,  49).  If  it 
is  a  purchase  money  mortgage  the  dower  must  be  taken 
subject  to  it,  although  it  was  not  executed  by  the  widow. 
{Brackett  v.  Baum,  50  X.  Y.  8).  Before  the  code  of 
civil  procedure,  if  the  premises  could  not  be  set  off  by 


ADMEASUHEMEXT    OF   UOWEU.  115 

metes  and  bounds,  the  coniniissionc  rs  might  j^ive  tlic 
widow  one-third  of  the  rents  and  protits,  or  the  ri<i;ht  to 
occupy  the  whole  of  the  premises  one-third  of  the  time. 
(M'hite  V.  Story,  2  Hill,  543).  Or  if  the  premises  con- 
sisted of  a  house,  they  might  set  off  to  her  the  right  to 
use  particular  rooms  in  the  house  with  the  right  of 
access  to  them,  if  she  would  consent  to  receive  them. 
{White  V.  t^tory,  supra).  But  since  the  code  of  civil 
procedure,  if  the  commissioners  cannot  make  actual 
partition,  they  must  report  that  fact  to  the  court,  and 
the  duty  of  the  court  thereupon  is  directed  by  section 
1613,  which  will  be  referred  to  later.  Where  the  prem- 
ises were  one  building  which  was  divided  by  the  coni- 
sioners  by  a  straight  line  running  through  the  building, 
without  regard  to  the  location  of  rooms,  so  that  a  por- 
tion of  the  building  became  useless,  the  report  of  the 
commissioners  was  vacated  on  motion.  {Stewart  v. 
Smith,  4  Abb.  Ct.  App.  Dec.  306).  Where  the  husband's 
interest  consisted  of  an  undivided  one-half  interest  in 
certain  real  property,  the  widow's  dower  is  in  that  in- 
terest only,  and  the  court  should  order  a  sale  of  that 
only — not  of  the  whole  property.  [Card  v.  Pudney,  42 
App.  Div.  405).  The  wife  is  entitled  to  have  dower  of 
mines  which  were  opened  by  the  husband  in  his  life- 
time; but  not  of  those  which  Avere  opened  since.  {Coates 
V.  Cheeier,  1  Cow.  460).  In  laying  off  the  widow's 
dower,  the  commissioners  have  no  right  to  take  into  con- 
sideration the  fact  that  provision  was  made  for  her  in 
lieu  of  dower,  to  diminish  what  she  would  otherwise  re- 
ceive.     {Hyde  v.  Hyde,  4  Wend.  630). 

Sec.    5.    Report   of  commissioners   or   referee. 

The  referee,  or  the  commissioners,  or  a  majority  of 
them,  must  make  a  full  report  of  their  proceedings, 
specifying  therein  the  manner  in  which  they  have  dis- 
charged their  trust,  with  the  items  of  their  charges,  and 
a  particular  description  of  the  portion  admeasured  and 
laid  off  to  the  plaintiff;  or,  if  they  report  that  it  is  not 
practicable,  or,  in  their  opinion,  it  is  not  for  the  best 
interests  of  all  the  parties  concerned,  to  admeasure  and 


IK)  ruArTUK. 

lav  oil  a  disiiiui  panel  of  llic  propciiv,  of  which  dower 
is  to  be  aduieasuivd,  Ihcv  must  state  the  reasous  for  (hat 
opiiiiou,  and  all  the  facts  relatiii<;  thereto.  The  report 
must  be  acknowledged  or  proved,  and  certified,  in  like 
niauner  as  a  deed  to  be  recorded,  and  must  be  tiled  in  the 
oltice  of  the  clerk.      (Co.  Civ.  Proc.  §  KilO). 

It  is  not  now  necessary  to  enter  the  report  at  lenj^th  in 
the  minutes  of  the  court.  Filing  the  report  and  excep- 
tions to  it,  and  a  notice  of  motion  for  judgment,  all 
these  things  are  usual  proceedings  in  the  action,  and  are 
governed  as  in  ordinary  actions.  (See  vol.  II,  p.  438, 
et  sc(j ) . 

Upon  the  application  of  any  party  to  the  action,  and 
upon  good  cause  shown,  the  court  may  set  aside  the 
report,  and,  if  necessary,  may  appoint  new  commission- 
ers, or  a  new  referee,  who  must  proceed,  as  prescribed, 
with  respect  to  those  first  appointed.      (Co.  Civ.  Proc. 

No  exceptions  are  required  to  be  filed  to  the  report  of 
the  commissioners;  but  a  motion  to  set  the  report  aside 
must  show  a  good  reason  for  it.  Such  a  motion  is  made 
on  notice,  with  affidavits  to  show  the  reason,  at  special 
term.  The  report  would  probably  be  set  aside  if  any 
irregularity  or  mistake  appeared  which  tended  to  the 
injury  of  the  party.  So  it  would  be  set  aside  for  any 
misconduct  of  the  commissioners  or  for  any  reason 
which  would  operate  to  set  aside  the  report  of  a  referee. 
( St^e  vol.  II,  p.  448).  As  to  the  confirmation  of  the  re- 
port see  volume  II,  p.  444.  The  rule  that  upon  failure 
to  file  exceptions  the  report  is  confirmed  in  eight  days, 
does  not  apply  to  the  report  of  commissioners.  In  all 
cases  it  is  necessary  to  move  to  confirm  the  report  on 
notice,  if  the  defendant  has  appeared  and  is  entitled  to 
notice  of  the  proceedings. 

Sec.    6.    Fees  and  expenses. 

The  fees  and  exix'uses  of  the  commissioners,  or  of 
the  referee,  including  the  expense  of  a  suiwey,  when  it 
is  made,  must  be  taxed  under  the  direction  of  the  court ; 
and  the  amount  thereof  must  be  paid  by  the  plaintiff, 


ADMEASLKEMENT    UF    DOWEK.  117 

and  allowed  to  her,  upou  the  taxation  of  her  costs.  (Co. 
Civ.  Proo.  §  1612).  For  the  amount  of  fees  see  volume 
II,  page  662. 

Sec.    7.    Final  judgment. 

Subdivision  1. — After  Admeasurement. 

Upon  the  report  being  confirmed  by  the  court,  final 
judgment  must  be  rendered.  If  the  referee  or  commis- 
sioners have  admeasured  and  laid  off  to  the  plaintiff  a 
distinct  parcel  of  the  i)roperty,  the  judgment  must 
award  to  her,  during  her  natural  life,  the  possession  of 
that  parcel,  describing  it,  subject  to  the  payment  of  all 
taxes,  assessments,  and  other  charges,  accruing  there- 
upon after  she  takes  possession.  If  the  referee  or  the 
commissioners  report,  that  it  is  not  practicable,  or  that, 
in  his  or  their  opinion,  it  is  not  for  the  best  interest  of 
all  the  parties  concerned,  so  to  admeasure  and  lay  off  a 
distinct  parcel  of  the  property,  the  final  judgment  must 
direct,  that  a  sum,  fixed  by  the  court,  and  specified 
therein,  equal  to  one-third  of  the  rental  value  of  the  real 
property,  as  ascertained  by  a  reference  or  otherwise,  be 
paid  to  the  plaintiff,  annually  or  oftener,  as  directed  in 
the  judgment,  during  her  natural  life,  for  her  dower  in 
the  property;  and  that  th<?  sum  so  to  be  paid,  be  and 
remain  a  charge  upon  the  property,  during  her  natural 
life.  The  final  judgment  may  also  award  damages  for 
the  withholding  of  dower.      (Co.  Civ.  Proc.  §  1613). 

The  court  may  take  proof  to  ascertain  what  is  one- 
third  of  the  rental  value  or  may  send  the  case  to  a 
referee  for  that  purpose  under  the  provisions  of  section 
1015;  if  sent  to  a  referee  the  proceedings  are  the  same 
as  in  any  other  action.  (Vol.  II,  p.  410,  et  seq.).  After 
enti*;^'  of  final  judgment  in  the  action,  the  court  has  no 
power  to  alter  the  same  by  providing  that  the  party  en- 
titled to  dower  should  be  paid  one-third  of  the  net  rents 
which  were  actually  received  and  no  more.  {Mclntyre 
V.  OZar/c,  43  Hun,  352). 


MS  ru  Arrici:. 

Sup.Di VISION  '2. — Aftkr  a  Sale. 

TinnuMliatcly  after  (•(nuplctiiiii  the  sal(%  and  t*X('fiitin<;' 
the  proper  eouveyauce  to  the  piirehaser,  the  offiei-r  mak- 
iiiji:  the  sale  must  make  ami  file  with  the  clerk  a  rejxtrt 
th('r(M)f,  showinii"  the  name  of  the  pui'chaser,  and  the 
])nr('hase  price  paid  by  him,  or,  if  the  pro])erty  was  sold 
in  parcels,  the  name  of  each  pnrchaser,  and  the  price 
and  a  description  of  the  parcel  sold  to  him;  the  snms 
which  the  officer  has  paid  out  of  the  i)rocee<ls  of  the 
sale,  pursuant  to  the  interlocutory  judj^nient;  the  pur- 
pose for  which  each  payment  was  made;  the  amount 
and  items  of  his  fei^s  and  expenses;  and  the  net  anumnt 
of  the  proceeds,  after  deductiiij»-  the  payments.  (('o. 
Civ.  Proc.  §  1623). 

Upon  confirming  the  sale,  the  court  must  ascertain, 
by  a  reference  or  otherwise,  the  rights  and  inter(\sts  of 
each  of  the  parties  in  and  to  the  proceeds  of  the  sale,  and 
also  what  gross  sum  of  money  is  equal  to  the  value  of 
the  ])laintift's  dower  in  the  net  proceeds. of  the  sale,  cal- 
culated upon  the  principles  applicable  to  life  annuities. 
The  court  must  thereupon  render  final  judgment,  con- 
firming the  sale,  and  directing  that  the  gross  sum  so 
ascertained  be  paid  to  the  plaintiff,  in  full  satisfaction 
of  her  right  of  dower;  and  that  the  remainder  of  the  pro- 
ceeds of  the  sale  be  distributed  among  the  persons  en- 
title<l  thereto.      (Co.  Civ.  Proc.  §  1624). 

If  a  reference  is  ordered  under  the  sections  just  quoted 
the  ])roceedings  are  the  same  as  upon  any  other  inci- 
dental reference.      {\o\.  II,  p.  410,  et  seq.). 

The  provisions  of  the  code  in  the  article  regulating  the 
acti(»n  of  partition,  relating  to  a  sale  made  as  jirescribed 
in  that  article,  and  to  the  distribution,  investment,  and 
care  of  the  proceeds,  apply,  as  far  as  they  are  applicable, 
to  a  sale  made  as  prescribed  in  this  article,  and  to  the 
distribution  of  the  proceeds  of  a  sale,  as  prescribed  in 
the  last  section.      (Co.  Civ.  Proc.  §  1625). 

The  i)rovisions  of  the  article  referred  to  will  be  found 
in  chapter  fifty  of  this  book,  article  V,  ante. 


ADMEASIUK.MKXT    OF    DOWElt.  119 

A  judgment  iu  favor  of  the  plaintiff  in  an  action  for 
dower,  is  enforceable  by  execution.  (Co.  Civ.  Proc. 
§  1240;  see  vol.  II,  p.  9G3). 

Subdivision  3. — Stay  on  Appeal. 

An  appeal  from  a  final  judgment,  awarding  to  the 
plaintiff  possession  of  the  part  admeasured  and  laid  off 
to  her,  does  not  stay  the  execution  thereof,  unless  the 
court,  or  a  judge  thereof,  grants  an  order  directing  such 
a  stay.  Such  an  order  shall  not  be  granted,  if  an  under- 
taking is  given  on  the  part  of  the  respondent,  with  one 
or  more  sureties,  approved  by  the  court,  or  a  judge 
thereof,  to  the  effect  that,  if  the  judgment  appealed  from 
is  reversed  or  modified,  and  restitution  is  awarded,  she 
will  pay,  to  the  person  entitled  thereto,  the  value  of  the 
use  and  occupation  of  the  part  so  admeasured  and  laid 
off  to  her,  or  of  the  portion,  restitution  of  which  is 
awarded,  during  the  time  she  holds  possession  thereof, 
by  virtue  of  the  judgment.      (Co.  Civ.  Proc.  §  1616). 

Sec.    8.    Right  of  widow^  after  judgment. 

The  admeasurement  is  conclusive  as  to  the  right  of 
dower,  and  the  location  and  extent  of  the  property  which 
has  been  set  off,  and  after  judgment  the  widow  has  no 
right  of  dower  in  a  part  not  assigned  to  her.  ( Graham 
V.  Linden,  50  N.  Y.  .517).  After  assignment,  the  widow 
is  in  possession  of  the  seizin  of  her  husband.  Her  title 
relates  back  to  the  time  of  the  mari^iage,  if  the  husband 
was  then  seized,  and  if  not,  it  relates  back  to  the  time 
when  he  became  seized.  The  seizin  of  the  heir  is  de- 
feated ah  initio  and  he  is  not  afterwards  considered  as 
ever  having  been  seized.  {Lawrence  v.  Brown,  5  N.  Y, 
391).  She  is  entitled  to  the  crops  which  Avere  on  the 
land  assigned  which  were  planted  or  sowed  before  her 
husband's  death.  (Clark  v.  Battorf,  1  T.  &  C.  58). 
She  is  also  entitled  to  fruits  not  gathered,  and  grass  not 
cut  when  the  dower  was  assigned.  (Eain  v,  Fisher,  6 
N.  Y.  .597). 

Where  a  portion  of  the  property  is  admeasured  and 
laid  off  to  the  plaintiff  as  her  dower,  a  lien,  which  is  in- 


ll!0  l'UA(    TICK, 

fcrior  to  the  ithiintilT's  i-i<ilit  of  (lower,  attaches,  dui-iiii;- 
the  life  of  the  plaiiitiir.  to  ihe  residue,  or  to  the  portion 
or  sliai'i'  of  the  residue  whieli  was  subject  to  it,  as  if  the 
ixirliou  hi  id  off  to  the  phiiiitilf  had  not  been  a  jtaii  of 
th«*  property.       (Co.  Civ.  Proc.  §  l()ir>). 

The  i»laintilf  nuiv,  from  time  to  time,  maintain  an 
action  auainst  the  owner,  or  a  person  who  was  the  owner 
of  tlie  ])ropei't_v,  to  recover  anv  instalment  of  the  snm, 
so  awarded  to  her  for  her  dower,  which  l)ecame  due  dur- 
inj;'  his  ownership,  and  remains  unpaid.  Or,  if  an  in- 
stalment renuiins  due  and  unpaid,  she  may  maintain 
an  action  to  procure  a  sale  of  the  property,  and  enforce 
the  ])ayuient  of  the  instalments,  due  and  to  beconu'  due, 
out  of  the  proceeds  of  the  sale,  t^ucli  an  action  must  be 
conducted,  as  if  the  charge  upon  the  real  property  was 
a  uu)rtj>ai»e  to  the  same  effect.  If,  at  any  time,  it  is 
made  to  appear  to  the  court,  that  the  rental  value  of  the 
real  property  has  materially  increased  or  diminished, 
the  court  may,  by  an  order,  to  be  uukU'  upon  notice  to 
all  the  persons  interested,  modify  the  final  judgment,  by 
increasing  or  diminishing  the  sum  to  be  paid  to  the 
plaintiff.      (Co.  Civ.  Proc.  §  1614). 


CHAPTER  LII. 

FORECLOSURE   OF    MORTGAGES  AND  LIENS. 


ARTICLE  I Foieclosuie  of  mortgage  on  real  estate. 

ARTICLE  II Bringing  the  action. 

ARTICLE  III ..  .Proceedings  in  the  action. 
ARTICLE  IV...  .Sale. 

ARTICLE  V Proceedings  after   sale. 

ARTICLE  VI ...  .  Strict  foreclosure  of  mortgage. 

ARTICLE  VII . .  .  Foreclosure  of  liens  on  chattels. 

ARTICLE  VIII.  .Foreclosure  of  mechanics'  liens  on  real  property. 


ARTICLE  I. 

FORECLOSURE   OF    MORTGAGE   ON    REAL   ESTATE. 

SECTION. 

1.  History  and  nature  of  the  action  for  foreclosure. 

2.  Remedies  of  mortgagee. 

3.  Purpose  of  the  action. 

Sec.    1.    History  and  nature  of  the  action  for  foreclosure. 

It  is  said  by  Chancellor  Kent  that  the  case  of  mort- 
gages is  one  of  the  most  splendid  instances  in  the  history 
of  our  jurisi^rudence  of  the  triumph  of  equitable  prin- 
ciples over  technical  rules  and  the  homage  which  these 
jjrinciples  have  received  by  their  adoption  in  the  courts 
of  law.  (4  Kent's  Com.  138).  In  a  court  of  common 
law  a  mortgage  was  an  ordinary  conveyance  following 
upon  a  contract  for  a  sale  or  for  a  lease.  The  mort- 
gagee took  the  place  of  the  mortgagor  as  owner  of  the 
land,  and  the  mortgagor  took  that  of  the  mortgagee  as 
the  owner  of  the  money  borrowed ;  the  subsequent  repay- 
ment of  the  money  and  reconveyance  of  land  being  regu- 
lated by  what  was  in  fact  nothing  else  than  a  subsidiary 
contract.     The  legal  estate  vested  in  the  mortgagee,  and 

(121) 


IL'2  i'ltAc  Tici:. 

it  was  forfeited  upon  default.  For  a  lonji;  time  it  was 
held  that  the  iiiorluauor  had  no  estate  wliatever  in  the 
land;  and  iliat  his  ((luilv  of  i-cdcuipt  ion,  as  it  was  and 
still  is  iinin'opi  I'lv  called,  was  not  a  ri^lil  in  the  land, 
but  oidy  a  hare  riiiht  to  recover  the  estate  in  e<|nily, 
after  breach  of  the  condition;  and  that  it  was  not  en- 
tailable, nor  was  it  an  estate,  nor  was  the  ('(piity  of  re- 
demption of  the  wife  an  estate  of  which  the  husband 
was  entitled  to  be  tenant  l)y  the  curtesy.  This  rigor  of 
the  conunon  law  doctrini'  was  not  abate<l  in  Kniiland 
until  the  time  of  (leorge  11,  by  the  enactment  of  the  stat- 
ute which  permitted  the  mortgagor,  when  an  action  was 
brought  on  the  bond,  or  (\j( rtun^nt  on  the  mortgage,  to 
pay  to  the  mortgagee  the  mortgage  money,  interests  and 
costs  expended  in  any  suit  at  law  or  in  e(]uity,  or  in  case 
of  his  refusal  to  accept  the  same,  to  bring  such  money 
into  court  where  such  action  was  pending,  and  the 
moneys  so  paid  or  brf)ught  into  court  were  declared  to 
be  a  satisfaction  and  discharge  of  the  mortgage;  and  the 
court  was  required  by  rule  to  compel  the  mortgagee  to 
assign,  surrender  or  reconvey  the  premises  to  the  mort- 
gagor, or  to  such  i)erson  as  he  should  for  that  purpose 
appoint. 

Courts  of  eciuity,  however,  especially  in  America,  have 
never  acquiesced  in  the  ruh^s  of  the  common  law.  In 
equity,  a  mortgage  of  land  is  regarded  as  a  mere  security 
for  a  debt  or  obligation,  which  is  considered  as  the  prin- 
cipal thing,  and  the  mortgage  only  as  the  accessory. 
The  mortgagee  is  recognized  as  having  nothing  more 
than  a  sort  of  security  for  his  debt,  which  is  provided 
by  the  conditional  power  of  sale;  and  whether  he  be  in 
possession  of  the  land  or  not,  is  treated  as  a  mere  trustee 
of  the  land  for  the  benefit  of  the  mortgagor  and  his  heirs. 
(Jones  on  Mort.  §  G,  et  seq.;  Pom.  Eq.  Jur.  §  1170,  et 
seq. ) .  But  while  no  title  in  the  strict  sense  is  held  to 
vest  in  the  mortgagee  of  the  land  until  after  foreclosure, 
yet  his  interest  is  in  some  cases  treated  and  regarded  as 
a  title  for  the  purpose  of  protecting  and  (mi forcing  the 
equities  between  the  parties.  An  instance  of  this  is 
found  in  Mickles  v.  Toirnseud  (18  N.  Y.  575),  where  it 
was  held   for  the  purpose  of  applying  the  doctrine  of 


FOKECLU.SLKE    UF    MUUTGAGES    AM»    LIENS.  123 

estoppel  by  deed  agaiust  a  persou  claiming  as  assignee 
of  the  mortgage  which  existed  at  the  time  of  his  prior 
conveyance  of  the  mortgaged  premises  with  warranty, 
but  Avhich  was  assigned  to  him  afterwards.  In  \  ini 
Dyne  v.  Thuyre  (19  Wend.  162),  also  the  release  of  the 
equity  of  redemption  by  the  mortgagor  to  the  mortgagee 
was  held  to  inure  as  an  enlargement  of  the  estate  of  the 
mortgagee  so  as  to  prevent  the  plaintiff's  recovery  of 
dower  at  law  in  disregard  of  the  equity  of  the  defendant 
to  have  the  mortgage  first  satisfied  out  of  the  land. 
{Hiihhell  v.  MuuJsoii,  53  N.  Y.  225).  So,  also,  if  the 
mortgagee,  with  the  consent  of  the  mortgagor,  has  en- 
tered upon  the  premises  and  taken  possession  of  them, 
the  courts  so  far  regard  him  as  the  owner  that  he  nmy 
set  up  his  title  as  mortgagee  in  possession  as  a  defense^ 
to  an  action  of  ejectment.  {Hoicell  v.  Learitt,  95  X.  Y. 
617).  As  long  as  the  legal  notions  prevailed  with  re- 
gard to  the  nature  of  a  mortgage,  there  could  be  no  such 
thing  as  an  action  to  foreclose  it;  but  the  remedy  of  the 
mortgagor  was  such  as  any  other  owner  of  property  out 
of  the  possession,  had  to  acquire  the  possession  of  his 
land.  The  first  innovation  upon  the  legal  notions 
which  the  court  permitted  was,  as  we  have  seen,  to  give 
to  the  mortgagor  the  right  to  redeem  after  failure  to 
perform  the  condition,  that  is,  to  come  in  and  pay  the 
debt  and  interest  and  recover  the  land  after  the  pay-day. 
And  in  proportion  as  the  equitable  notion  of  the  nature 
of  a  mortgage  acquired  strength,  the  rights  of  the  mort- 
gagor became  more  and  more  regarded,  until,  at  last, 
being  regarded  solely  as  the  owner  of  the  propvrty,  the 
remedy  of  the  mortgagee  was  confined  in  some  states, 
especially  in  the  state  of  New  York,  to  an  action  by 
which  the  amount  of  his  debt  and  interest  was  liqui- 
dated and  in  default  of  the  payment,  the  land  was  sold 
to  satisfy  it.  This  action,  which  is  the  ])resent  action 
for  foreclosure,  is  not  an  action  ///  /xrsoiiatii,  to  recover 
a  debt  from  an  individual,  but  is  in  the  nature  of  a  pro- 
ceeding in  rem  to  appropriate^  the  land  by  foreclosing 
the  lien  of  the  mortgage  and  a])plying  the  proceeds  to 
discharge  the  mortgage.  {R<ich<ii  v.  i<filirrJJ.  172  N. 
Y.  83,  89).     The  statutory  authoi-ization  for  a  deficiency 


124  i'UA(  ru'i;. 

jud^iiicnt  (loos  not  clinnuc  the  cluinirlL'i'  of  (lie  art  ion; 
siU'h  a  I'ijiiit  is  ii(»l  a  disliiul  ami  iiuk'iJciKlciii  cause  of 
action,  bnt  is  an  incidciilal  renu'dy  snbsidiarv  to  the 
main  object  of  the  action.  (Id.).  This  foreclosure 
action  is  now  re<;ulated  almost  entirely  by  statnte. 

Sec.    2.    Remedies  of  mortgagee. 

At  common  law  the  mort^aj^ee  mi^ht  at  the  same  time 
proceed  by  a  snit  n^xtn  the  note  or  bond,  and  by  a  writ 
of  entry  or  ejectme^nt  to  acqnire  the  possession  of  the 
proj)erty;  and,  afterwards,  when  the  ri«>ht  to  foreclose 
was  ac(]nired,  he  mii;ht  concnrrently  with  these  two  ac- 
tions maintain  a  bill  in  e<iuity  to  foreclose  the  niort|;age. 
(Jones  on  Mort.  §  1215).  Except  in  jurisdictions  where 
the  statnte  has  forbidden  it,  all  of  these  reiiu dies  mi;^ht 
be  pursniMl  at  the  same  time.  {(iUhiKUi  v.  ///.  tC-  Miss. 
Tel.  Co.,  91  r.  S.  fiO:">;  Jours  v.  Condc,  (i  Johns.  (Mi.  77). 
In  New  York,  at  present,  the  remeily  of  the  mortgagee 
is  confined  eitlu  r  to  an  action  ii])on  the  bond,  or  to  the 
action  for  the  f(ireclosnre  of  the  mortgage.  Ilis  right 
to  maintain  ejectment  has  been  taken  away.  (Co.  Civ. 
Proc.  §  1-41)8).  The  two  actions  which  are  now  left  to 
the  mortgagee,  cannot  be  pursncMl  concnrrently. 

A\'hile  an  action  to  foreclose  a  mortgage  ui)on  real 
property  is  jtending,  or  after  linal  judgment  for  the 
plaintiff  therein,  no  other  action  shall  be  commenced 
or  maintained,  to  recover  any  part  of  the  mortgage  debt, 
without  leave  of  the  court  in  which  the  former  action 
was  l>ronght.     (Co.  Civ.  Proc.  §  1()2,S). 

This  section  does  not  inclmle  an  action  of  foi-eclosure 
pending  in  a  foreign  jurisdiction.  (X.  Y.  L.  Ins.  Co.  v. 
.1  (■//.•/».  12.-5  X.  Y.  r;r;o'i. 

Where  final  judgment  for  the  i)laintitf  has  l)een  ren- 
dered, in  an  action  to  recover  any  ])art  of  the  mortgage 
debt,  an  action  shall  not  be  comiiKMiced  or  maintained 
to  foreclose  the  mortgtge,  unless  an  execution  against 
the  ])roperty  of  the  defendant  has  been  issued,  u])on  the 
judgment,  to  the  sheriff  of  the  county  where  he  i-esides, 
if  he  resides  within  the  state,  or,  if  he  resides  with<»ut 
the  state,  to  the  sheriff  of  the  county  where  the  judg- 


FORECLOSURE   OF    MORTGAGES   AND    LIENS.  125 

meiit-roll   is  filed;   and   has   beeu   returned   wholly   or 
partly  unsatisfied.      (Co.  Civ.  Froc.  §  1030). 

The  effect  of  these  two  sections  is  to  permit  only  oue 
action  at  the  same  time,  except  as  permitted  by  said  sec- 
tions, for  they  forbid  a  suit  in  e(iuity  to  foreclose  the 
mortgage  until  the  remedy'  at  law  upon  the  bond  is  ex- 
hausted, and  an  action  at  law  on  the  bond  is  forbidden 
while  a  suit  in  eciuity  to  foreclose  the  mortgage  is  pend- 
ing except  by  leave  of  court.  (ReicJicrt  v.  Htllwell,  172 
N.  Y.  S3,  88).  It  was  held  in  that  case  that  the  sec- 
tions in  question  did  not  prohibit  a  separate  foreclosure 
in  equity  of  two  separate  mortgages  upon  separate 
pieces  of  property,  although  each  was  given  to  secure  the 
payment  of  the  same  indebtedness. 

The  granting  of  leave,  under  section  1G28,  is  entirely 
discretionary  with  the  court,  to  be  granted  or  refused' 
in  accordance  with  the  equities  of  the  case.  {Eq.  L.  Ins. 
Soc.  v.  ^StcL■cns,  63  N.  Y.  311).  Where  the  mortgagee 
has  voluntarily  refrained  from  asking  a  deficiency 
judgment  in  the  foreclosure  suit,  some  satisfactory  rea- 
son is  required  to  be  shown  liefore  he  will  be  permitted 
to  institute  a  separate  action  at  law  on  the  bond.  ( Id. ) . 
The  rule  seems  to  be  that  extraordinary  and  exceptional 
circumstances  must  be  shown  to  warrant  the  granting 
of  such  an  application.  {Matter  of  Bjjnie,  81  App.  Div. 
74,  and  cases  cited).  The  application  should  be  on 
notice,  and  not  ei-  parte.  (Matter  of  MarsJtall,  53  App. 
Div.  136,  138-139).  For  a  further  discussion  of  this 
matter,  see  volume  I,  pp.  123-125. 

Section  1630  applies  to  a  judgment  by  confession. 
(Guilford  v.  Crandall,  69  Hun,  414). 

Where  it  is  sought  to  foreclose  a  mortgage  the  most 
common  action  is  that  which  is  brought  for  foreclosure 
and  sale.  A  strict  foreclosure,  which  was  at  first  the 
only  method  of  foreclosing  the  mortgage,  is  now  practi- 
cally but  little  in  use.  The  power  to  permit  strict  fore- 
closure was  not  given  to  the  courts  by  statute  (Bolks  v. 
Duf,  43  N.  Y.  469,  473)  ;  and,  therefore,  it  is  not  proba- 
ble that  it  was  taken  away  by  the  requirement  of  section 
1626  of  the  code  of  civil  procedure,  that  in  an  action  to 


ILH)  rUACTICK. 

fdi't close  a  niortiiJiuc  «»ii  I'ral  i>r(»)K'i-ty  the  Jii(l;:,iuent 
must  in  all  cases  dii-cct  llic  sale  of  ihc  property  inort- 
jiaj^ed.  {  FniiiLlj/ii  v.  Ihiifii-did.  (il  How.  Pr.  48).  In- 
deed, in  (•onii)aratively  recent  decisions  of  the  court  of 
appeals,  the  existence  of  tliis  power  has  bet^u  recog- 
nized, though  the  limitations  placed  upon  it  have  been 
such  that  it  is  of  no  practical  utility.  {Moultoii  v.  Cor- 
nish, 138  N.  Y.  133;  Denton  v.  Ontario  Co.  Nat.  Bk.,  150 
N.  Y.  12G,  134).  Those  limitations  will  be  discussed 
hereafter. 

The  mortgagee  may  also  proceed  by  means  of  foreclos- 
ure by  advertisement,  as  provided  by  sections  2387  to 
2409,  inclusive,  of  the  code.  As  this  remedy  is  a  special 
proceeding,  and,  as  the  courts  have  held  that  the  papcM-s 
must  show  a  strict  and  literal  compliance  with  every 
part  of  the  statute,  it  is  not  ordinarily  resorted  to,  and 
will  not  be  discussed  here. 

Sec.    3.    Purpose  of  the  action. 

The  object  of  the  action  for  foreclosure  and  sale  of 
the  mortgaged  premises  is  to  allow  the  mortgagee  to  col- 
lect the  amount  due  upon  the  mortgage,  or  to  invest 
him  1)3^  sale  of  the  property  with  tlu^  legal  title,  and  to 
enable  him  to  get  possession  of  the  property,  frcH'  from 
any  title  or  liens  acquired  subsequent  t-o  his  mortgage. 
To  do  this,  the  amount  due  u[)oii  the  mortgage  is  fixed 
in  the  judgment,  and  the  property  is  sold  by  a  referee 
for  that  purpose,  who  is  instructed  to  pay  to  the  plain- 
titf  the  amount  of  his  mortgage,  or  so  much  of  it  as  shall 
be  applicable  after  payment  of  the  costs  and  expenses  of 
the  action,  and  other  prior  charges. 


FORECLOSUUE   OF    MORTGAGES   AND    LIENS.  127 

ARTICLE  II. 

BRINGING   THE   ACTION. 

SECTION. 

1.  In  what  court  to  be  brought. 

2.  Place  of  trial. 

3.  Who  may  be  parties. 

4.  How  to  bring  the  action, 

5.  Pleadings. 

Sec.    1.    In  \irliat  court  to  be  brought. 

The  action  may  be  brought  in  the  supreme  court, 
(vol.  I,  pp.  65-66).  The  supreme  court  has  jurisdiction, 
not  only  of  the  action  to  foreclose  a  mortgage  upon 
lands  within  this  state,  but  also  where  a  part  of  the 
land  is  situated  without  the  state.  ( Union  Trust  Co.  v.  f 
Olmsted,  102  N.  Y.  729).  County  courts  also  have  juris- 
diction of  actions  for  the  foreclosure  of  mortgages;  but 
only  where  the  property  is  situated  within  the  county. 
(Vol.  I,  p.  72).  The  county  court,  however,  has  no 
jurisdiction  of  an  action  which  is  brought  to  correct  a 
mistake  in  a  mortgage  and  for  a  foreclosure  of  the  mort- 
gage as  corrected  {Thomas  v.  Harmon,  46  Hun,  75; 
affd.,  122  N.  Y.  84),  though  it  may  grant  any  relief 
which  may  properly  be  said  to  be  incidental  to  the  fore- 
closure, such  as  a  reformation  of  the  conditions  of  the 
bond  secured  by  the  mortgage,  in  respect  of  interest. 
[Mead  v.  Langford,  56  Hun,  279).  See,  also,  on  the 
county  court's  jurisdiction,  volume  I,  page  74. 

Sec.    2.    Place  of  trial. 

The  action  is  triable  in  all  cases  in  the  county  where 
the  propertv  or  some  part  thereof  is  situated.  (Vol.  II, 
p.  127). 

Sec.    3.    AVho  may  be  parties. 

This  subject  is  fully  discussed  in  vol.  I,  pp.  175-178. 
One  owning  part  of  a  mortgage  only,  may  be  a  sole  plain- 
tiff in  an  action  to  foreclose  it.  {Battcrman  v.  Albright, 
6  N.  Y.  St.  Rep.  334 ;  affd.,  122  N.  Y.  484) .  In  such  case, 
however,  the  owners  of  the  remainder  of  the  mortgage 


1-8  PllACTICE. 

sliould  be  made  parties  defeiidaiit,  aud  the  reason  for 
that  action  should  be  staled  in  ilie  coiiiplaiiil.  If  the 
niortiiai^ci's  are  joint  owners  their  interest  so  far  par- 
takes of  ilie  natnre  of  the  dei)t  that  tlie  doeliine  of  sur- 
vivorship applies  aud  tlie  foreclosure  niav  be  brouj^ht 
iu  the  uanie  of  the  survivor,  without  inakin<^  the  jx'r- 
soual  representatives  of  the  deceas(^d  owner  parties  to 
the  action.  (Joues  ou  Mort.,  g  1382).  Usually  prior  iu- 
cunibraucers  are  not  propei-  i)arties  to  the  acti(»n  ;  but  tlie 
])hiintilf  may  join  them  as  defenchmts  for  tlie  [uirpose 
of  having  the  amount  due  to  them  ascertained  and  paid 
out  of  the  proeeeds.  {(Jiiilford  V.  Jacohic.  (»!)  Ilnn, 
420).  If  the  prior  incumbrancer  does  not  wish  his  rights 
adjudicated  in  that  way,  he  must  appear  and  duly  object 
that  he  is  not  a  jiroper  party  to  such  an  action  {■lacohie 
V.  M'lcldc,  144  X.  Y.  237)  ;  if  he  defaults  and  the  judg- 
ment follows  the  prayer  of  the  complaint  he  is  bound 
thereby.  (I<1.).  Where  no  such  pur[)ose  is  indicated 
in  the  complaint,  and  no  such  provision  is  incorporated 
in  the  judgment,  a  prior  lien  is  not  cut  off,  although 
the  holders  thereof  are  joined.  [Ij migrant  Ind.  Sac. 
Bank  v.  iioldman,  75  N.  Y.  127;  ydsoii  v.  Brown,  144 
N.  Y.  384).  So  also  the  plaintiff  may  join  as  a  party 
defendant  one  who  asserts  a  right  in  the  mortgage  prem- 
ises prior  to  the  mortgage  in  suit;  aud  the  (luestion  of 
priority  may  properly  be  determined  in  the  action. 
{Broivn  V.  VolUening,  64  N.  Y.  76;  Older  v.  Russell,  8 
App.  Div,  518).  Contingent  remaindermen  are  not 
necessarj'  parties  defendant.  {Isl.  Y.  8ec.  <k  Tr.  Co.  v. 
Schoenherfj,  87  App.  Div.  262). 

Any  person  who  is  liable  for  the  payment  of  the  debt 
secured  by  the  mortgage  may  be  made  a  defendant  in 
the  action.      (Co.  Civ.  Proc.  §  1627). 

Sec.    4.    HoTir  to  bring  the  action. 

If  leave  to  sue  is  necessary,  the  manner  of  making 
application  will  l)e  found  in  vol.  I,  pp.  123,  et  seq.,  where 
are  also  stated  the  circumstances  under  which  such 
leave  is  necessary.  A  notice  of  pendency  of  action  (Vol. 
T,  pp.  237,  ef  seq.)  should  be  filed;  and  the  complaint 


FORECLOSIUK    OF    M()I{T(iA(JE.S    AND    LIENS.  129 

should  be  liled  at  llic  same  time.  The  summons  is  iu 
the  usual  form.  (\'ol.  I,  pp.  11)1,  ct  scq.).  There 
should  l)e  served  with  the  sumiiKUis  a  uotiee  of  no 
personal  claim  on  all  those  del*eudants  ai;ainst  whom 
judpuent  for  a  deficiency  is  not  asked.  (Vol.  I,  p.  197  |. 
If  the  parties  are  unknown  or  infants,  the  rules  which 
have  been  prescribed  for  ordinary  actions  apply.  (Vol. 
1,  pp.  181,  182),  If  the  parties  are  non-residents,  ser- 
vice may  be  made  by  publication.  (Vol.  I,  p.  217).  Be- 
fore the  code,  it  was  held  that  if  the  mortgage  had  been 
made  by  the  husband  and  wife,  and  the  Avife  had  no  in- 
terest in  the  property  except  her  inchoate  right  of  dower, 
service  on  the  husband  alone  was  sufficient  {Ferguson  v. 
Smith,  2  Johns.  Ch.  139),  and  service  on  her  was  only 
necessary  where  the  proceeding  was  against  her  only  in 
respect  of  her  separate  estate.  (Feitner  v.  Lewis,  119 
N.  Y.  131;  Feitner  v.  Hoe<jer,  15  N.  Y.  St.  Rep.  377; 
affd.,  121  N.  Y.  660).  The  fact  that  the  wife  was  an  in- 
fant did  not  affect  the  rule.  ( Id. ) .  The  rule  has  been 
abolished;  and  where  a  wife  is  not  personally  served, 
a  judgment  is  void  against  her  and  does  not  affect  her 
inchoate  right  of  dower.  {Taggart  v.  ^yade,  49  Hun, 
265;  vol.  I,  p.  200). 

Sec.    5.    Pleadings. 

The  complaint  must  set  out  the  facts  showing  the 
right  of  the  plaintiff  to  maintain  the  action,  and  that 
there  is  a  cause  of  action  against  the  defendants,  so  that 
the  reason  why  they  are  made  parties  should  appear.  If 
there  are  infant  defendants,  the  complaint  must  state 
what  their  interest  is,  and  whether  it  is  paramount  or 
subsequent  to  the  interest  of  the  mortgagee.  {AJdrich  v. 
Lapham,  6  How.  Pr.  129).  A  general  allegation  in  the 
complaint  that  certain  of  the  defendants  have  or  claim 
some  interest,  in  or  lieu  upon  the  premises,  which  inter- 
est or  lien,  if  any,  is  subsequent  to  the  plaintiff's  mort- 
gage, is  sufficient  to  state  and  constitute  a  cause  of  ac- 
tion against  such  defendants.  What  the  rights  are  is 
only  important  in  the  contest  as  to  the  surplus.  {Druri/ 
v.  Clark,  16  How.  Pr.  424). 
9 


l'>0  l'KA(   ri("E. 

The  comphiint,  in  an  action  (o  forcciOse  a  iiinrt<2;a.<j;e 
upon  real  propcrlv,  nmsl  slalc,  wlu  I  lur  any  other  adion 
has  been  l)rou<;ht  lo  recover  au.v  pari  of  I  he  mortgage 
debt,  and,  if  so,  whether  any  pari  thei-eof  has  been  col- 
lected.    (Co.  (Mv.  Proc.  ^  1(;l'!>). 

If  any  i)roccH'dings  have  been  had  to  recover  any  part 
of  the  mortgage  debt,  the  complaint  should  state  what 
they  were,  and  against  whom  they  were  taken.  [J'alti- 
f<(,ii  V.  l'oucr,s,  4  Paige,  549).  Where  the  complaint 
stated  that  no  proceedings  had  been  had  at  law  to  re- 
cover the  amount  due  on  the  bond,  and  the  defendanis 
pleaded  a  judgment  which  the  i)laintitTf  held  against 
them  as  being  for  a  part  of  the  debt  secured  by  the  mort- 
gage, and  such  ai)peared  to  be  the  case,  it  was  held  to  be 
a  fatal  objection;  but  the  plaintiff  was  allowed  to  amend, 
if  he  had  exhausted  his  remedy  at  law  n])on  the  judg- 
ment. (Lorctt  v.  Grrnian  Rrf.  Vh.,  \'l  Barb.  07).  The 
rules  with  regard  to  the  other  pleadings  are  precisely 
the  same  as  those  in  any  other  action ;  and  will  be  found 
state<l  in  their  proper  place  in  the  tirst  volume  of  this 
work. 


ARTICLE  III. 

PROCEEDINGS  IN  THE  ACTION. 
SECTION. 

1.  Default. 

2.  Trial. 

3.  Provisional  remedies. 

4.  Judnrinent. 

5.  Tender  of  amount  due. 

Sec.    1.    Default. 

Judgment  on  default  can  only  be  taken  by  application 
to  the  court.  The  rule  of  procedure  in  these  cases  is  the 
same  as  in  every  other  case,  except  so  far  as  it  is  modi- 
fied by  general  rule  00,  which  is  Tound  in  vol.  IT,  pp. 
717,  718,  721.  A  reference  to  compute  the  amount  due 
is  usually  ordered  in  all  cases  (vol,  II,  p.  721)  ;  unless 
the  court  sees  fit  to  take  proof  without  the  inten'ention 
'>f  a  referee,  which  it  is  always  at  liberty  to  do.      If  the 


FORECLOSURE    OF    MORTGAGES    AND    LIENS.  131 

amount  is  not  all  dne,  the  order  of  reference  should 
direct  the  referee  to  take  i)roof  and  report  whether  the 
inortgaued  jtroperty  is  so  cireumstanced  that  it  can  be 
sold  in  parcels  without  injury  to  the  interests  of  the  par- 
ties. (Co.  (Mv.  Proc.  g§  163(5,  1637).  It  is  improper 
to  provide  in  tlie  order  of  reference  that  the  referee's 
report  should  be  confirmed  without  further  application 
to  the  court.  {Citizens^  *SV//-.  Bank  v.  Bauer,  19  Hun, 
238).  The  ])roceedings  before  a  referee  are  the  same 
as  in  other  interlocutory^  references  (see  vol.  II,  pp. 
410,  et  seq. )  ;  except  as  to  the  manner  of  taking  the  proof 
before  a  referee,  as  to  which,  see  vol.  II,  p.  721;  also, 
(lenl.  Rule,  60.  See,  also,  vol.  II,  pp.  137,  141,  112,  114. 
The  report  of  the  referee  should  show  the  facts  upon 
which  his  conclusions  are  based,  and  be  accompanied 
with  the  abstract  of  the  documentarA'  evidence  produced 
before  him.  (Wolcott  v.  l]'e«rer,  3  How.  Pr.  159;  *S'e- 
ruritij  F.  Ins.  Co.  v.  Martin,  15  Abb.  Pr.  479).  Where 
the  mortgagee  has  been  compelled,  in  order  to  preserve 
his  security,  to  pay  a  lien,  the  amount  so  paid  may  be 
added  to  the  mortgage;  but  the  expenses  of  insurance 
made  by  him  cannot  be  added,  unless  it  was  done  by  the 
express  agreement  of  the  mortgagor  or  the  owner  of  the 
estate.  (Faiirc  v.  Winans,  Hopk.  Ch.  283).  A  report 
made  upon  default  in  this  action  is  not  within  section 
763  of  the  code  of  civil  procedure,  providing  for  judg- 
ment after  the  death  of  a  party  after  the  report.  ( ^mitli 
v.  Joyce,  3  N.  Y.  St.  Rep.  560).  As  to  notice  of  applica- 
tion for  judgment  on  the  referee's  report,  see  volume  II, 
p.  712.  The  application  is  made  as  in  other  actions 
where  application  to  the  court  is  necessary  before  en- 
tering judgment.  (Vol.  II,  p.  714,  et  seq.).  The  oflB- 
cial  searches  must  in  all  cases  be  filed  with  the  judg- 
ment-roll.     (Genl.  Rule,  64). 

Sec.    2.   Trial. 

The  action  is  an  equity  action,  and  is  to  be  tried,  like 
others,  by  the  court  without  a  jury  at  special  tenu,  un- 
less issues  are  ordered  settled  for  trial  by  jury ;  in  which 
case  the  proceedings  are  the  same  as  in  other  actions; 
and  will  be  found  stated  in  volume  II,  pp.  224,  et  seq. 


13l*  I'ltACTlCK. 

WliiTc  j);ii'l  (if  the  (U'ft'iKlaiils  have  answered  ami  part 
ai>i»earnl  and  not  answeretl,  but  are  entitled  to  notice 
of  the  application  for  Jud<j;nienl,  notice  of  trial  slioidd 
We  jiiven  to  all,  and  the  necessary  pr<M)f  may  be  taken 
by  the  court  at  the  trial,  and  no  order  of  reference  to 
conqjutc  the  ainouiit  due  will  be  re(Hiired. 

Sec.    3.    Provisional  remedies. 

The  court  has  authority  to  appoint  a  receiver  in  a 
proper  case.  The  rules  with  regard  to  the  appointment 
of  a  receiver  will  be  found  at  vol.  1,  p.  (JDT,  cl  scq.  So 
far  as  they  are  especially  applicable  to  mortgage  cases 
they  will  be  found  at  vol.  I,  pp.  707-701).  As  to  injunc- 
tions to  stay  waste,  see  vol.  1,  p.  578. 

Sec.    4.    Judgment. 

In  an  action  to  foreclose  a  mortgage  upon  real  proj)- 
er.ty,  if  the  plaintiff  becomes  entitle<l  to  final  judgment, 
it  must  direct  the  sale  of  the  property  mortgaged,  or  of 
such  part  the  reof  as  is  sufticient  to  discharge  the  mort- 
gage debt,  the  expenses  of  the  sale,  and  the  costs  of  the 
action.      (Co.  Civ.  Proc.  §  1(326). 

lu  every  judgment  for  the  sale  of  mortgaged  premises, 
the  description  and  particular  boundaries  of  the  prop- 
erty to  be  sold,  so  far,  at  least,  as  the  same  can  be  ascer- 
tained from  the  mortgage,  shall  be  inserted.  And,  un- 
less otherwise  specially  ordered  by  the  court,  the  judg- 
ment shall  direct  that  the  mortgaged  ])remises,  or  so 
much  thereof  as  may  be  sufficient  to  discharge  the  mort- 
gage debt,  the  expenses  of  the  sale  and  the  costs  of  the 
action,  as  provided  by  section  1(120  and  1070  of  the  code, 
and  which  may  be  sold  separately  without  material  in- 
jur)^ to  the  parties  interested,  be  sold  by  or  under  the 
direction  of  the  sheriff  of  the  county,  or  referee,  and 
that  the  plaintiff,  or  any  other  party  may  become  a  pur- 
chaser on  such  sale;  that  the  sheriff  or  referee  execute 
a  deed  to  the  ])iirchaser;  that  out  of  the  proceeds  of  the 
sale,  unless  otherwise  directed,  he  pay  the  expenses  of 
the  sale,  as  provided  in  section  1076,  aforesaid,  and  that 
he  pay  to  the  plaintiff,  or  his  attorney,  the  amount  of 
his  debt,  interest  and  costs,  or  so  much  as  the  purchase 


FORECLOSrUIO    OF    MOKTdACJES    AND    LIENS.  133 

money  will  pay  of  the  same,  and  that  he  take  the  receipt 
of  the  plaintiff,  or  his  attorney  for  the  amount  so  paid, 
and  file  the  same  with  his  report  of  sale;  and  that  the 
purchaser  at  such  sale  be  let  into  possession  of  the  prem- 
ises on  production  of  the  deed.      (Genl.  Rule,  61). 

The  expenses  mentioned  in  this  rule  are  taxes,  assess- 
ments, and  water  rates  which  are  liens  upon  the  prop- 
erty sold;  and  such  as  may  be  necessary  to  redeem  the 
l)roperty  from  any  sales  for  taxes,  assessments  or  water 
rates  that  have  not  become  absolute.  (Co.  Civ.  Proc. 
§  1676).  The  court  may,  however,  direct  that  the  sale 
be  made  subject  to  such  taxes  or  assessments,  in  which 
ease  the  referee  will  not  be  called  upon  to  pay  them. 
{Day  V.  Town  of  Ngid  Lots,  107  N.  Y.  148).  A  provi- 
sion that  the  referee  pay  taxes,  assessments,  etc.,  does 
not  estop  the  purchaser  from  questioning  the  validity 
of  the  tax  sale  of  the  property  for  taxes  or  assessments. 
(Simms  V.  Tof/Jit,  1)1  N.  Y.  654).  Where  there  are  two 
or  more  parcels  of  land,  and  the  situation  of  the  prop- 
erty and  the  nature  and  amount  of  the  subsequent  in- 
cumbrances have  been  brought  to  the  notice  of  the  court, 
it  may  authorize  a  sale  of  a  sufficient  amount  of  the 
mortgaged  premises  to  pay  all  of  the  incumbrances. 
(Andreirs  v.  O'Mahoney,  112  N.  Y.  567). 

The  referee  to  sell  should  be  named  in  the  judgment; 
and  the  court  may,  if  it  thinks  proper,  direct  in  the  judg- 
ment the  order  of  sale.  It  has  jurisdiction  also  to  re- 
quire the  mortgagor  to  execute  a  conveyance  of  the 
premises  if  it  is  necessary  to  complete  the  sale.  ( Union 
Trust  Co.  v.  Olmsted,  102  N.  Y.  729).  The  judgment 
must  be  entered  in  each  county  where  the  lands  are 
situate  before  a  purchaser  can  be  required  to  pay  the 
purchase  money  or  to  accept  the  deed.  ( Co.  Civ.  Proc. 
§  1677).  It  is  a  final  judgment  from  which  an  appeal 
may  be  taken  to  the  court  of  appeals.  {Morris  v. 
Morange,  38  N.  Y.  172;  Wager  v.  Link,  134  N.  Y.  122). 
But,  while  a  final  judgment  for  all  purposes  of  review, 
in  other  respects  it  is  interlocutory;  the  sale  is  the  final, 
concluding  act,  barring  and  foreclosing  the  interests  of 
the  parties.  {Xiitt  v.  Cuming,  155  N.  Y.  309).  It  need 
not  necessarily  be  made  by  the  same  judge  who  tries  the 


134  I'KACTICK. 

issues  in  the  action.  (('JKtinhcrhi'ni  V.  DoujtffPi/,  30  N. 
V.  144).  The  (•(iiirt  nuiv,  if  il  see  tit,  reserve  all  (|nes- 
tions  (»f  costs  until  the  coutirmation  of  the  report  of  the 
referee.  (I<1.)-  '^'l^^'  jiidiiinent  should  contain  direc- 
tions as  to  the  euterinji  of  judj^nienl  for  a  (h'liciency. 
{Moore  V.  Shaw,  15  Hun,  428;  appeal  dismissed,  77  X. 
Y.  512;  Wdf/cr  v.  Link,  supra).  If  authority  is  not 
given  to  enter  a  judj^nient  for  any  deficiency  that  may 
be  found,  it  is  irregular  to  do  so.  {Oaij  v.  Johnson,  5 
Wk.  Dig.  237).  Where  the  decision  of  the  court  per- 
mitted a  judgment  for  a  deficiency  to  he  entered;  but 
the  plaintitf  saw  fit  to  enter  one  without  providing  for 
such  relief,  the  defendant  who  was  found  to  be  liable 
for  a  deficiency  was  held  to  be  discharged  from  such 
liability.  {yutaal  L.  Ins.  Co.  V.  Hoyt,  15  ^Yk.  Dig. 
489).  It  seems,  however,  that  a  judgment  can  be  cor- 
rected by  amendment,  in  this  respect  {t^prayuc  v.  Jones, 
9  Paige,  395) ,  though  not  after  the  sale.  ( United  States 
Trust  Co.  V.  Sehliep,  23  Civ.  Proc.  Rep.  264;  s.  c,  59 
N.  Y.  St.  Rep.  867 ) .  Where  an  assignee  for  the  benefit 
of  creditors  is  joined  as  a  party  defendant  in  an  action 
for  the  foreclosure  of  a  mortgage  which  had  been  as- 
sumed by  his  assignors,  judgment  for  a  deficiency  should 
not  be  rendered  against  the  assignee  but  against  the 
assignors.  (Payne  v.  Smith,  28  Hun,  104).  Judgment 
for  deficiency  may  be  entered  against  the  personal  repre- 
sentatives of  the  mortgagoi-  (CJacius  v.  Fof/el,  S^i^  N.  Y. 
434);  or  against  a  guarantor  of  payment  {Of peer  v. 
Burehell,  19  Alb.  L.  J.  57)  ;  or  against  one  who  guar- 
antees "  payment  by  foreclosure  and  sale  "  (^'an^lerhiU 
v.  Schreyer,  91  N.  Y.  392)  ;  but  such  judgment  cannot  be 
entered  against  a  surety  for  a  particular  debtor,  against 
whom  the  action  has  been  discontinued  and  judgment 
waived.  [Heneken  v.  James,  16  Wk.  Dig.  33).  Where 
a  person  liable  to  the  plaintiff  for  the  payment  of  the 
debt  already  secured  by  the  mortgage,  has  been  made 
a  defendant  in  the  action  and  has  ap])eared  or  has  been 
personally  served  with  a  summons,  judgment  for  defi- 
ciency nuiy  be  awarded  against  him.  (Co.  Civ.  Proc. 
§  1627).      This  includes  a  grantee  of  the  premises  who 


FOUECLOSUKE   OF    MORTGAGES   AND    LIENS.  135 

has  assiiiiiecT  the  mortgage  (Halseij  v.  Rccd,  9  Paige, 
446)  ;  but  not  if  he  has  talcen  a  deed  as  security  ouly. 
[Root  V.  Wright,  84  N.  Y.  72).  Judgment  for  a  defi- 
ciency may  be  entered  against  a  defendant  who  is  an 
obligor  on  a  bond,  although  he  is  not  one  of  the  mort- 
gagors. {Thome  v.  ^eichij,  59  How.  Pr.  120).  A  per- 
sonal judgment  cannot  be  entered  against  a  non-resident 
who  was  not  personally  served  within  the  state  and  who 
did  not  appear.  {HcJiiriiiger  v.  HicJwk,  53  N.  Y.  280). 
One  against  whom  the  payment  of  a  deficiency  has  been 
adjudged,  is  not  relieved  by  the  fact  that  there  was  a  re- 
sale of  the  premises.  ( Goodicin  v.  I^imonson,  74  N.  Y. 
133). 

Where  the  mortgage  debt  is  not  all  due,  and  the  mort- 
gaged property  is  so  circumstanced,  that  it  can  be  sold 
in  parcels  without  injury  to  the  interests  of  the  parties, 
the  final  judgment  must  direct,  that  no  more  of  the 
property  be  sold,  in  the  first  place,  than  is  sufficient  to 
satisfy  the  sum  then  due,  with  the  costs  of  the  action 
and  expenses  of  the  sale;  and  that,  upon  a  subsequent 
default  in  the  payment  of  principal  or  interest,  the 
plaintiff  may  apply  for  an  order,  directing  the  sale  of 
the  residue,  or  of  so  much  thereof  as  is  necessary  to 
satisfy  the  amount  then  due,  w  ith  the  costs  of  the  appli- 
cation and  the  expenses  of  the  sale.  The  plaintiff  may 
apply  for  and  obtain  such  an  order,  as  often  as  a  default 
happens.      (Co.  Civ.  Proc.  §  1636). 

If  only  a  part  of  the  amount  of  the  mortgage  is  due 
when  the  suit  is  brought,  but  further  sums  become  due 
before  the  entry  of  the  judgment,  the  court  may  direct 
judgment  to  be  entered  not  only  for  the  sum  due  when 
the  action  was  brought,  but  for  such  other  sums  as  have 
become  due  since.      (Asendorf  v.  Meyer,  8  Daly,  278). 

If,  in  a  case  specified  in  sections  1634,  1635  and  1636, 
it  appears  that  the  mortgaged  property  is  so  circum- 
stanced, that  a  sale  of  the  whole  will  be  most  beneficial 
to  the  parties,  the  final  judgment  must  direct,  that  the 
whole  property  be  sold;  that  the  proceeds  of  the  sale, 
after  deducting  the  costs  of  the  action,  and  the  expenses 
of  the  sale,  be  either  applied  to  the  satisfaction  of  the 


1^<)  I'UAciici:. 

whole  sum  secured  by  the  iiiort.ujiiic,  with  sucli  a  rebate 
of  interest,  as  justice  re(|uir(s;  or  l»e  (irst  applied  to  the 
payiiicul  of  ihc  sum  due,  and  the  halauce,  or  so  much 
tiiercof  as  is  ncccssarv,  be  iuvested  at  interest,  for  the 
bem'tit  of  the  i)laintil'f,  to  be  paid  to  him  from  time  to 
time,  as  any  part  of  the  principal  or  interest  itccomes 
due.      (Co.  Civ.  Proc.  §  1037). 

The  court  in  <>iviug  judj-meut  is  to  take  into  considera- 
tion all  the  lieus  which  existed  subsequent  to  that  of  the 
mortiia^e  itsdf.  As  these  liens  are  all  cut  off  by  a  sale, 
they  must  be  protected  by  the  court  which  orders  a  Side, 
or  they  are  h)st.  The  ecjuities  of  all  holders  of  liens 
which  are  of  later  date  tlian  that  of  the  mort.uaiie  and 
who  are  parties  to  the  suit  are  as  much  before  the  c(mrt 
as  objects  of  its  care  as  the  riijihts  of  the  owners  of  the 
mort.<>a<ie  ]U'imarily  to  be  foreclosed.  (Liriii(/f<tnn  v. 
Mil  (I  nun,  11)  X.  Y.  440).  And  such  protection  is  to  be 
accorded  them,  whether  the  holders  of  the  subsequent 
lieus  have  served  copies  of  their  answers  on  the  niort- 
j-aoor,  their  co-defendant,  or  not.  {Dobbs  v.  ^Siebuhr, 
15  Daly,  52).  If  a  subsequent  incumbrancer  is  not  a 
party  to  the  action,  the  sale  is  nevertheless  valid  as  to 
him,  and  his  only  remedy  is  by  an  action  to  be  permitted 
to  come  in  and  redeem  from  the  mortgage.  {^Salmon  v. 
Allen,  11  II uu,  29).  The  judgment  cannot  impair  the 
liens  of  senior  mortgages  or  prior  incumbrances,  unless 
it  is  expressly  adjudged  upon  some  equitable  ground 
{ClemcniH  v.  Grisicold,  46  Hun,  377)  ;  but  while  a  prior 
incundjrancer  or  one  who  claims  adversely  is  not  usually 
a  proper  party  in  a  foreclosure  suit,  still  where  the 
claim  is  stated  in  the  complaint  it  may  be  the  subject  of 
adjudication;  and  the  judgment  thereon  is  conclusive 
iGoebel  v.  Iffla,  111  N.  Y.  170)  ;  but  such  an  adjudica- 
tion will  not  usually  be  made  in  the  face  of  the  objection 
by  a  prior  incumbrancer.  (Id.;  Jacobie  v.  Mickle,  144 
X.  Y.  237).  Where  such  prior  incumbrancer  is  so  made 
a  party,  the  judgment  should  provide  for  the  payment 
of  his  mortgage  out  of  the  first  net  proceeds  of  tlie  sale 
after  deducting  the  referee's  fees  and  expenses.  (GuiU 
ford  V.  Jacobie,  69  Hun,  420). 


FORECLOSURE   OF    MORTGAGES   AND    LIENS.  137 

Sec.    5.    Tender   of    amount    due. 

Where  an  action  is  brought  to  foreclose  a  mortgage 
upon  real  property,  upon  which  a  portion  of  the  princi- 
pal or  interest  is  due,  and  another  portion  of  either  is  to 
become  due,  the  complaint  must  be  dismissed,  without 
costs  against  the  plaintiff,  upon  the  defendant  paying 
into  court,  at  any  time  before  a  final  judgment  directing 
a  sale  is  rendered,  the  sum  due,  and  the  plaintiff's  costs. 
(Co.  Civ.  Proc.  §  1634).  • 

If  there  is  a  dispute  as  to  the  amount  of  costs,  the  de- 
fendant may  offer  to  pay  the  amount  due  upon  the  mort- 
gage, and  such  costs  as  he  thinks  jDroper;  and  upon  a 
refusal  by  the  plaintiff  to  accept  the  amount  tendered, 
the  defendant  may  apply  to  the  court  on  motion  upon 
notice  for  leave  to  pay  the  amount  due,  and  such  costs 
as  the  court  may  in  its  discretion  allow ;  and  the  court 
should  entertain  the  application  and  permit  the  pay- 
ment, fixing  the  costs;  and  directing  that  upon  the  pay- 
ment being  made,  the  action  should  be  discontinued,  or 
proceedings  therein  stayed,  as  may  be  proper.  {Bartoio 
V.  Cleveland,  16  How.  Pr.  364;  7  Abb.  Pr.  339).  Tender 
of  the  amount  of  the  mortgage  and  costs  if  any,  dis- 
charges the  lien  of  the  mortgage.  {Kortright  v.  Cady, 
21  N.  Y.  343). 

In  a  case  specified  in  section  1634,  if,  after  a  judg- 
ment directing  a  sale  is  rendered,  but  before  the  sale  is 
made,  the  defendant  pays  into  court  the  amount  due  for 
principal  and  interest,  and  the  costs  of  the  action,  to- 
gether with  the  expenses  of  the  proceedings  to  sell,  if 
any,  all  proceedings  upon  the  judgment  must  be  stayed; 
but,  upon  a  subsequent  default  in  the  payment  of  prin- 
cipal or  interest,  the  court  may  make  an  order,  direct- 
ing the  enforcement  of  the  judgment,  for  the  purpose  of 
collecting  the  sum  then  due.      (Co.  Civ.  Proc.  §  1635). 


138  I'KAITU'E. 

AKTK'LE  IV. 

SALE. 
SECTION. 

1.  llow  and  by  wlioiii   luaiU*. 

2.  Convey.iTice. 

3.  Referee's   report  of  sale,  and  confirmation. 

Sec.    1.    Hoxr  and  by  XFhom  made. 

The  sale  is  to  be  made  by  the  sheriff  or  by  a  referee 
appointed  in  the  final  juilgnient.  tSucli  i-eferee  sliould 
always  be  selected  by  the  court,  and  not  by  a  party. 
(Geul.  l\nle,  Gl).  The  mode  of  conducting  the  sale  is 
prescribed  in  section  1()78  of  the  code  of  ciyil  proced- 
ure. This  section  and  all  the  sections  of  the  code  on 
that  subject  and  the  rules  with  regard  to  it,  will  be 
found  stated  in  chapter  50,  ante.  \\\mt  is  stated  there 
with  regard  to  sales  in  actions  foi*  partition  apply  to  all 
judicial  sales,  (fcneral  rule  02  contains  the  special  rule 
with  regard  to  the  sales  of  land  in  the  counties  of  New 
York  and  Kings.  The  duties  of  i-eferee  to  sell  are  min- 
isterial only;  he  cannot  yary  the  judgment  as  to  its 
terms  in  any  respect.  {People  v.  Berf/en,  53  N.  Y.  404). 
He  may,  howeyer,  apply  to  the  court  for  instructions  at 
any  time  before  the  sale  is  had.  {Euston  v.  Pickersf/ill, 
55  N.  Y.  310).  It  is  the  duty  of  the  referee  after  the 
judgment  is  entered,  without  any  further  order  of  the 
court  to  proceed  to  the  sale  of  the  property  with  all 
reasonable  diligence  if  he  is  requested  to  do  so  by  any 
of  the  parties  to  the  suit  Ayho  will  be  injured  by  delay  in 
making  it;  and  if  the  referee  does  not  proceed  with  due 
diligence,  any  party  interested  in  having  the  mortgaged 
premises  sold,  is  at  liberty  to  apply  to  the  court  to  direct 
the  sale  to  be  had.  {KeUy  y.  Israel,  11  Paige,  147). 
The  referee  has  power  to  adjourn  the  sale  from  time  to 
time  in  his  discretion  ( Id. )  ;  and  it  is  his  duty  to  do  so 
if  good  reason  therefor  is  shown.  (Kiu<i  \.  Piatt,  37  N. 
Y.  155).  A  postponement  of  the  sale  should  be  adyer- 
tised,  where  it  is  possible  to  do  so  (Co.  Civ.  Proc.  § 
1678)  ;  but  a  failure  to  advertise  it  is  not  a  jurisdictional 
defect.      {lUehfitein   v.   ^chultz,  120  N.  Y.   108).     The 


FORECLOSrui;    OF    MOUTGAGE.S    AM)    LIHN8,  139 

referee  eauuot  delegate  his  duties;  but  uiust  perforin 
them  pei'sounllv.  {Bci/cr  v.  Dcaiis,  2  Johus.  Oh.  154). 
If  the  order  of  sale  is  uot  prescribed  in  the  judgment, 
auT  party  interested  may  apph^  to  the  court  for  an  order 
directing  the  referee  in  what  order  to  sell  the  premises. 
{Yaudcrcoijk  v.  Cohocs  tSuc.  Inst.,  5  Hun,  G41).  Such 
application  should  be  made  at  the  trial ;  or  if  not  then 
made,  at  special  term  on  notice  to  such  other  parties  who 
have  appeared  in  the  action.  (Bergen  v.  Buckhouse,  T 
Wk.  Dig.  113).  If  no  direction  was  given  by  the  court, 
the  referee  should  sell  in  the  inverse  order  of  alienation. 
{Bernhardt  v.  Lijinhurner,  85  N.  Y.  172).  The  general 
rule  is  that  where  there  are  several  successive  grantees 
of  diiferent  portions  of  mortgaged  premises,  the  land 
on  the  foreclosui'e  of  the  mortgage  is  to  be  sold  in  the 
inverse  order  of  alienation,  and  this  secures  the  equita- 
ble rights  of  the  parties  as  between  themselves.  The 
rule  applies  where  the  premises  last  aliened  are  situated 
in  another  state.  [WeUing  v.  Ryerson,  94  N.  Y.  98). 
The  same  rule  is  applicable  to  the  case  of  successive 
mortgages  of  parts  of  the  mortgaged  premises  on  the 
foreclosure  of  a  prior  mortgage  on  the  whole  property, 
where,  by  its  application,  the  equitable  rights  of  all 
parties  will  be  secured.  It  is,  however,  a  rule  of  equity 
and  yields  to  circumstances.  The  rule  is  established  to 
adjust  and  preserve  the  equitable  rights  of  claimants 
holding  distinct  interests  in  parts  of  the  mortgaged 
property  according  to  the  maxim  prior  tempore  potior 
jure.  If  the  land  can  be  sold  so  as  to  protect  all  of  the 
securities,  equity  requires  that  the  sale  should  be  so 
made;  or  if  they  cannot  be  protected  in  full,  then  that 
the  sale  should  be  made,  so  as  to  nmke  the  loss  upon  the 
subse(iueut  mortgages  as  small  as  possible,  consistently 
A\ith  the  rights  of  all  parties.  (Bernhardt  v.  Lijniburner, 
supra).  But  the  right  of  sale  in  this  manner  nmy  be 
varied  or  abandoned  by  express  agreement  between 
mortgagoi-  and  successive  mortgagees,  or  grantees. 
{Boirne  v.  Li/nde,  13  Wk.  Dig.  97;  atfd.,  91  N.  Y.  92). 
The  plaintiff  or  the  owner  of  the  judgment  has  no  right 
to  control  the  order  of  sale  of  the  premises.  (Knyder  v. 
Stafford,   11    Paige,    71).     The   referee   should,    in    all 


140  I'UAciici:. 

cases,  ((Hiijtlv  w  ilh  jiuv  icasoiialtlc  ircnicst  of  the  (twner 
of  the  i>r(»iK'i'lv  Jis  to  ihc  onh'i-  of  sah'  i  A'/y///  v.  I'Uiil ,  ;J7 
N.  Y.  15."))  ;  and  if  he  i-cfuscs  to  (ht  so,  il  w  ill  he  iii-onnd 
for  scttinii  aside  (he  sale,  if  aiiv  iiijurv  comes  lo  I  lie 
owner  fi-oni  snch  refnsal.  (  \  (HkIcicooL-  v.  CoIiocs  ,S<ir. 
I  list.,  r»  llun,  (141  ).  It  seems,  liow  cv  cr,  (hat,  iu  ordei'ini; 
a  resale,  the  conrts  usnallv  impose,  as  a  condition,  the 
payment  by  the  applicant  lor  snch  i-esalcof  the  costs  and 
expenses  of  the  sale  already  had,  and,  (d'ten,  the  giving 
of  a  hond  conditioned  that  as  much  shall  he  hid  on  the 
resale  as  had  been  hid  on  (he  original  sale.  {First  Xut. 
I>k.  of  I'hiiii/irhl  V.  Hinilsoii ,  1(5  App.  Div.  ()32;  Germ.- 
Anier.  lik.  of  h'oc/i.  v.  Doiilii/,  3!)  A])]).  Div.  lOG).  If 
any  question  arises  at  the  sale  as  to  the  proper  order  in 
which  the  separate  ])arcels  should  he  sold,  the  safest 
way  is  to  adjourn  the  sale  and  ask  the  itistructions  of 
the  coui't ;  hut  it  is  not  necessary  for  the  referee  to  do 
so.  It  is  usual  to  require  the  purchaser  to  pay  a  part — 
ordinarily  one-tenth  of  the  hid — at  the  time  of  sale;  and 
the  remainder  in  the  time  stated  in  the  terms  of  sale. 
The  purchaser  is  usually  required  to  sign  a  contract ; 
hut  this  is  not  necessary;  for  ju<licial  sales  are  not 
within  the  statute  of  frauds.  {Aiidrcics  v.  0\Ualionei/, 
112  N.  Y.  567). 

If  the  purchaser  refuses  to  complete  the  sale  and  make 
payments  according  to  the  terms  of  the  sale,  the  referee 
may  at  once  put  up  the  property  again  for  sale,  or  he 
may  re-advertise  the  sale,  as  though  no  sale  had  taken 
])lace.  {Hnrh'ff  v.  Daris,  3  Edw.  (.'h.  338).  The  more 
proper  practice,  lio\\('ver,  in  such  cases,  where  the  pur- 
chaser has,  after  the  sale,  refused  to  coni]>lete  his  pur- 
chase, is  to  apply  to  the  court  for  an  order  that  he  com- 
plete the  sale  or  that  it  he  resold  at  his  expense,  {MUJcr 
V.  Collycr,  36  Barb.  250).  If  a  resale  is  ordered,  it 
should  be  on  the  same  terms  as  the  former  sale.  {Ri<j(/s 
V.  PurccU,  74  N.  Y'.  370).  The  ]Hirchaser  at  the  first 
sale  is  liable  for  the  deficiency  at  the  second  and  the 
expenses  thereof,  and  also  for  any  taxes  that  might  have 
been  imposed  upon  the  land  in  the  meantime.  (  Riihe 
V.  ]j(nr\  8  Hun,  251).  To  enforce  this  liability  he  may 
be  proceeded  against  summarily  by  motion  on  notice; 


FOKECLOSrUK    OF    MORTGAOES    AND    LIENS.  141 

and  the  coiiit  may  enforce  it  by  order.  {Camden  \. 
Mayhcir,  129  U.  S.  73).  Whei-e  a  purchaser  refuses  to 
complete  his  sale,  and  another  sale  was  had  at  which 
the  same  purchaser  bid  otf  the  property  for  a  less 
amount,  he  is  entitled  to  have  the  purchase  completed 
on  payment  of  the  amount  bid  at  the  second  sale,  and 
to  have  credit  for  all  moneys  that  he  has  paid  on  the  first 
sale,  if  no  one  elects  to  proceed  against  him  for  the  fail- 
ure to  complete  his  first  purchase,  {Home  Ins.  Co.  v. 
Jones,  45  How.  Pr.  498). 

No  order  to  stay  a  sale  under  judgment  in  partition, 
or  for  the  foreclosure  of  a  mortgage,  shall  be  granted 
or  made  by  a  judge  out  of  court,  except  upon  a  notice  of 
at  least  two  days  to  the  plaintiff's  attorney.  (Genl. 
Eule,  67).  "^ 

An  order  to  show  cause  made  by  a  judge  out  of  court 
is  irregular  if  it  contains  a  stay  of  proceedings  of  the 
sale  in  foreclosure,  and  is  made  returnable  in  less  than 
two  days.     {Asinari  v.  YoJkening,  2  Abb.  N.  C.  454). 

Sec.    2.    Conveyance. 

When  the  purchaser  has  completed  his  sale,  the 
referee  should  make  a  deed  of  conveyance  of  the  prem- 
ises to  him. 

Whenever  a  sheriff  or  referee  sells  mortgaged  prem- 
ises, under  a  decree  or  order,  or  judgment  of  the  court, 
it  shall  be  the  duty  of  the  plaintiff,  before  a  deed  is  exe- 
cuted to  the  purchaser,  to  file  such  mortgage  and  any 
assignment  thereof  in  the  ofiice  of  the  clerk,  unless  such 
mortgage  and  assignments  have  been  duly  proved  or 
acknowledged,  so  as  to  entitle  the  same  to  be  recorded; 
in  which  case,  if  it  has  not  been  already  done,  it  shall 
be  the  duty  of  the  plaintiff  to  cause  the  same  to  be  re- 
corded, at  full  length,  in  the  county  or  counties  where 
the  lands  so  sold  are  situated,  before  a  deed  is  executed 
to  the  purchaser  on  the  sale ;  the  expense  of  which  filing 
or  recording,  and  the  entry  thereof,  shall  l)e  allowed  in 
the  taxation  of  costs;  and,  if  filed  with  the  clerk,  he 
shall  enter  in  the  minutes  the  filing  of  such  mortgage 
an  assignments,  and  the  time  of  filing;  but  this  rule  shall 
not  extend  to  anv  case  where  the  morta-aoe  or  assign- 


14l*  ri{A(  ri(  k. 

incuts  npitcar,  l»,v  the  plead inus  or  pi-oof  in  \ho  suit  coiii- 
iiiciKcd  I  hereon,  (o  lia\"e  ln'cn  lost  oi-  (l<'sl  roved,  ((ieul. 
Knle,  (;3). 

As  to  the  manner  of  execntion  of  Ihe  conxevanee  see 
chajJter  tiftv,  aiilc. 

A  conveyauce  upon  a  sale,  made  pursuant  to  a  final 
judj^inent,  in  an  action  to  foi'ci  lose  a  mort_i;ajj;'e  upon 
real  property,  vests  in  the  pnrchaser  the  same  estate, 
only,  that  would  have  vested  in  Ihe  moi't<j;a<j;ee,  if  the 
equity  of  redemption  had  been  foreclosed.  Such  a  con- 
veyance is  as  valid,  as  if  it  was  executed  by  the  mort- 
gagor and  mortgagee,  and  is  an  entire  bar  against  each 
of  them,  and  against  each  party  to  the  action  who  was 
dul}'  summoned,  and  every  person  claiming  from, 
through,  or  under  a  party,  by  title  accruing  after  the 
filing  of  the  notice  of  the  pendcMicy  of  the  action,  as  pre- 
scribed in  section  1031  of  the  code.  (Co.  Civ.  Proc. 
§  1632). 

This  section  of  the  code  determines  the  estate  which 
passes  by  a  foreclosure  deed,  and  by  it  there  vests  in  the 
purchaser  the  entire  estate  and  interest  of  the  mort- 
gagor and  mortgagee  as  of  the  date  of  the  mortgage,  un- 
affected by  subse(iuent  incumbrances  and  conveyances 
by  the  mortgagor.  ( Rector,  etc.,  of  (lirist's  Ch.  v.  Mack, 
93  N.  Y.  4<S8).  The  sale  has  no  (effect  on  rights  pi'ior  to 
or  paramount  to  the  mortgage  {Jicithboiie  v.  JJoonci/,  58 
N.  Y.  463)  ;  nor  which  are  paramount  to  the  title  of  the 
mortgagor  and  mortgagee  (Emigrant  Ind.  ^av.  Bank  v. 
Goldman,  75  N.  Y.  127;  Nelson  v.  Broivn,  144 
N,  Y.  384),  unless  such  effect  is  expressly  adjudged. 
iClrmrntfi  v.  ftri.'^u'ohl,  46  Hun,  377;  Jacohie  v. 
M'lckle,  144  N.  Y.  237).  A  sale  does  not  affect  the 
lien  of  a  subsequent  judgment  creditor  who  is  not  a 
party  to  the  action  {Reynolds,  v.  Park,  53  N.  Y^  36); 
nor  the  title  of  a  purchaser  at  a  tax  sale  of  the  premises 
{Baker  v.  Hoiixird,  66  N.  Y''.  6)  ;  nor  that  of  a  tenant  in 
common  of  the  equity  of  redemption  who  was  not  a  party 
to  the  action.  {Schrirer  v.  ScJirirer,  86  N.  Y".  574). 
^^'here  the  owner  of  the  equity  of  redemption  is  not  made 
a  party,  the  purchaser  at  the  sale  acquires  no  title,  of 
course,  as  against  him;  but  he  does  ac(|uire  the  moi't- 


FORECLOSIUI-:   OF    MOUTGAUES   A^D    LIENS.  143 

gagee's  interest.  {7\jicihsliriul  v,  Thomson ^  139  N.  Y. 
152;  Green  v.  Musscij,  TG  App.  Div.  171).  Where  the 
wife  of  the  mortgagor  joined  \u  the  mortgage,  but  was 
not  made  a  party  to  the  foreclosure  action,  the  effect  of 
the  omission  is  to  leave  her  interest  in  the  property  sub- 
stautiall}'  the  same  as  though  no  action  had  been  prose- 
cuted for  foreclosure;  and  her  right  of  dower  is  not  af- 
fected by  the  judgment.  {Ross  v.  Boardman,  22  Hun, 
527). 

Sec.    3.    Referee's  report   of  sale,   and  confirmation. 

The  referee  should  at  once  pay  over  the  money  which 
he  has  received  upon  the  sale,  as  directed  by  the  judg- 
ment; and  take  receipts  from  those  to  w^hom  it  is  paid. 

All  surplus  moneys  arising  from  the  sale  of  mort- 
gaged premises  under  any  judgment,  shall  be  paid  by  the 
sheriff  or  referee  making  the  sale  within  five  days  after 
the  same  shall  be  received  and  be  ascertainable,  in  the 
city  of  New  York  to  the  chamberlain  of  the  said  city, 
and  in  other  counties  to  the  treasurer  thereof,  unless 
otherwise  specially  directed,  subject  to  the  further  order 
of  the  court,  and  every  judgment  in  foreclosure  shall 
contain  such  directions,  except  where  other  provisions 
are  specially  made  by  the  court.     ( Genl.  Rule,  61). 

The  referee  should  also  take  a  receipt  for  such  surplus 
moneys.  He  should  make  a  report  of  the  sale  w^hich 
should  state  the  time  and  place  and  manner  of  the  sale, 
the  name  of  the  purchaser,  the  amount  bid  and  paid  and 
the  disposition  of  the  money;  and  he  should  annex  to 
the  report  the  receipts  which  he  has  taken  for  the  money. 
General  rule  61  provides  that  no  report  of  sale  shall  be 
filed  or  confirmed,  unless  it  is  accompanied  by  a  proper 
voucher  for  the  surplus  moneys,  showing  that  they  have 
been  paid  over,  deposited  or  disposed  of  in  pursuance  of 
the  judgment.  The  rejiort  should  also  state  the  fact 
that  the  conveyance  has  been  made.  If  there  is  a  de- 
ficiency, that  fact  should  be  stated  and  the  amount  of 
the  deficiency  should  be  given  in  the  report.  The  report 
should  be  filed  and  notice  of  the  filing  given  to  those 
parties  who  have  appeared  in  the  action.  It  is  usual  to 
move,  on  notice  to  such  parties  as  have  appeared,  for  an 


144  ruACTic'i:. 

order  coiifiniiiiiu  llic  report  ;  Imt  siicli  action  is  not  nec- 
essary luuler  the  pi-ovisions  of  ni'iicral  rule  30.  (See 
vt)l.  11,  p.  44.")).  It  is  prciper  uiuler  the  provisions  of 
tliat  rule  for  a  party  tiliiiji  the  re[K)rt  to  enter  as  of 
course  an  <  .r  p<irtc  onU-r  that  unh'ss  exceptions  are  tiled 
by  the  o[)posite  party  within  eight  days  after  notice  of 
the  entry  and  tiling  of  the  report  it  shall  stand  in  all 
things  continued;  and  to  serve  a  copy  of  this  order  and 
notice  of  its  entry  with  the  notice  of  tiling  the  report. 
(Bac/ic  V.  Doscher,  41  N.  Y.  Super.  Ct.  Kep.  150;  aftd., 
07  N.  V.  4lM)).  Conlirniation  of  the  report  is  not  neces- 
sary to  divest  the  title  of  the  defendant,  and  to  give  an 
absolute  title  to  the  i)ui'chaser.  (Farnll  v.  \oel,  IT 
App.  l)iv.  310).  All  (piestions  in  dispute  between  the 
mortgagor  and  jiurchaser  at  the  sale,  arising  upon  the 
sale  should  be  settled  by  a  motion  to  confirm  the  report. 
(Farmers'  L.  tt  T.  Co.  v.  B.  cG  .1/.  Tel.  Co.,  11  Civ.  Proc. 
Kep.  307).  While  it  is  better  practice  that  the  order 
should  be  entered  confirming  the  report,  and  fixing  the 
amount  of  deficiency,  in  order  that  a  judgment  for  it 
may  be  entered,  3'et  a  failure  to  do  this  is  only  an  irregu- 
larity, and  the  judgment  for  a  deficiency  will  not  neces- 
sarily be  set  aside  because  no  such  order  has  l>een  made. 
[Moore  V.  ^Iiawy  15  Hun,  428;  appeal  dismissed,  77  N. 
Y.  512). 


ARTICLE  V. 

PROCEEDINGS  AFTER  SALE. 

SECTION. 

1.  Deficiency. 

■J.   Distribution   of   the   surplus. 

Sec.    1.    Deficiency. 

The  duty  of  the  referee  after  the  sale,  as  we  have  seen, 
is,  first,  to  pay  the  expenses  of  the  sale,  and  such  other 
expenses  as  he  is  directed  by  the  judgment  to  pay;  and 
the  debtor  is  entitled  to  credit  oidy  for  the  net  proceeds 
of  the  sale  realized  by  the  creditor  jifter  the  deductions 
of  all    amounts   for  taxes,   etc.,   and   the   payment   of 


FORECLO.SIRE    OF    MORTGAGES    AND    LIENS.  145 

all  costs  of  the  action  and  expenses.  {Maisliall  v.  Da- 
rk's, 78  N.  Y.  414).  If  there  is  a  deficiency  on  tlie  sale, 
that  fact  and  the  amount  of  it  should  be  stated  in  the 
referee's  report.  Such  a  statement  in  the  referee's  re- 
port is  sufficient  to  warrant  the  issuing  of  execution  on 
the  judgment  for  deficienc}',  without  any  further  appli- 
cation to  the  court  or  notice  to  the  defendant.  [Baiclei/ 
V.  WJialen,  64  Hun,  550;  Taylor  v.  Derrick,  19  N.  Y. 
Supp.  785). 

^^'here  judgment  for  foreclosure  and  sale  of  premises 
and  for  a  delicieuc}^  has  been  entered,  if  the  premises 
have  been  sold  under  a  judgment  for  the  foreclosure  of 
a  prior  mortgage,  and  so  much  surplus  monej^  as  the 
second  mortgagee  was  entitled  to  receive  has  been  ap- 
plied upon  his  judgment,  the  court  will  upon  motion 
permit  him  to  enter  judgment  for  deficiency,  without 
going  through  the  form  of  a  sale  upon  his  own  mort- 
gage, {^ieywert  v.  Hamcl,  33  Hun,  44;  Frank  v.  Dari.s, 
135  N.  Y.  275).  The  earlier  case  of  Lotb  v.  Willis  (22 
Hun,  508),  to  the  contrary,  is  overruled  by  the  cases 
cited.  The  fact  that  the  property  sold  for  a  nominal 
sum  only  does  not  prevent  a  judgment  for  a  deficiency. 
{Mead  v.  ."^pink,  15  N.  Y.  St.  Rep.  881).  After  the 
referee's  report  showing  that  there  is  a  deficiency,  has 
been  made,  the  proper  practice  is  to  file  the  report  and 
give  notice  of  the  filing  and  either  at  the  same  time  en- 
ter an  order  that  upon  failure  to  file  exceptions  within 
eight  days  the  report  is  confirmed,  and  the  plaintiff 
shall  have  judgment  for  the  amount  of  the  deficiency, 
which  order  is  to  be  served  with  the  notice  of  the  filing 
of  the  report ;  or  to  move  the  court  at  special  term  upon 
notice  to  such  of  the  parties  as  are  entitled  to  notice  that 
the  report  be  confirmed  and  the  plaintiff  have  judgment 
for  the  deficiency.  {Bache  v.  Doschcr,  41  N.  Y.  Super. 
Ct.  Rep.  150;  affd.,  67  N.  Y.  429).  If  exceptions  to  the 
referee's  report  have  been  filed,  they  must  be  brought 
to  a  hearing  in  the  usual  way.  (See  vol.  II,  p.  442). 
After  the  deficiency  has  been  ascertained  and  the  order 
confirming  the  report  entered,  or  after  the  order  )iis'i 
becomes  absolute,  a  judgment  should  be  docketed  for  the 
10 


1-46  I'KAiTici:. 

amount  of  the  dcticiciK-v.  It  cannot  be  dockctcMl  before 
that  time.  {JJcAj/ndd  v.  Maiilrll,  1  Abb.  Pr.  130,  i:{4). 
After  jiidjjfnient  has  been  (hicketed,  an  execution  mav  be 
issued  ujton  it  as  upon  an  ordiiiai-y  nionev  jiidiiiiieiil. 

Sec.    2.    Distribution   of   the   surplus. 

Siiwtivisiox  1. — How  Disposed  of  p.y  the  Referee. 

If  there  is  any  surplus  of  the  i)rocee(ls  of  the  sale, 
after  payinji-  the  expenses  of  the  sale,  and  satisfying-  the 
niorti>age  debt  and  the  costs  of  the  action,  it  must  be 
l)ai(I  into  court,  for  the  use  of  the  jx'rson  or  i)ers(»ns  en- 
titled thereto.     (Co.  Civ.  Proc.  §  1033). 

The  duty  of  the  referee  Avith  regard  to  the  payment 
of  the  surplus  is  more  particularly  specified  in  article 
IV,  section  3,  sirjira.  (See  also  McRohcris  v.  Pooley, 
5  N.  Y.  St.  Kep.  830).  The  court  will  take  the  surplus 
moneys  into  its  custody  wherever  it  finds  them,  and  it 
will  distribute  them  according  to  the  rights  of  the 
parties.  (VeJten  v.  Vofjt,  17  N.  Y.  St.  Kep.  112).  Whei-e 
the  referee  had  paid  the  surplus  viionc^vs  with  the  rest  of 
the  purchase  pi'ice  over  to  the  attorney  for  the  plaintiff, 
who  had  failed  to  pay  them  to  the  county  treasurer,  the 
court  made  an  order,  upon  motion,  requiring  the  attor- 
ney to  pay  the  surplus  to  the  county  treasurer.  (Mat- 
ter of  ISilKcrnail,  45  Hun,  575).  The  surplus  moneys 
belong  to  the  owner  of  the  equity  of  redemption,  unless 
claims  are  filed,  and  they  are  paid  over  on  those  claims. 
{Hor?i  v.  Town  of  ]\cic  Lots,  83  N.  Y.  100;  Dai/  v.  Toicn 
of  New  Lots,  107  Id.  148 ) . 

If  any  part  of  the  surplus  remains  in  the  court  for  the 
period  of  three  months,  the  court  must,  if  no  applica- 
tion has  been  made  therefor,  and  may,  if  an  application 
therefor  is  pending,  direct  it  to  be  invested  at  interest, 
foi-  the  benefit  of  the  person  or  persons  entitled  thereto, 
to  be  paid  upon  the  direction  of  the  court.  (Co.  Civ. 
Proc.  §  1633). 

Subdivision  2. — Filing  Claim  to  Surplus. 

On  filing  the  report  of  the  sale,  any  party  to  the  suit, 
or  any  person  who  had  a  lien  on  the  mortgaged  prem- 


FORECLOSURE   OF    MORTCiAGES   AND    LIENS.  147 

ises  at  tlie  tinu'  of  the  sale,  upon  riliu*^  with  the  ch'i-k 
where  the  report  of  sale  is  filed  a  notice,  statino-  that  he 
is  entitled  to  such  surplus  moneys  or  some  ])art  thereof, 
and  the  nature  and  extent  of  his  claim,  may  have  an  or- 
der of  reference,  to  ascertain  and  report  the  amount  due 
t(>  him,  or  to  any  other  person,  which  is  a  lien  upon  such 
surplus  moneys,  and  to  ascertain  the  priorities  of  the 
several  liens  thereon;  to  the  end  that,  on  the  coming  in 
and  confirmation  of  the  report  on  such  reference,  such 
further  order  ma}'  he  made  for  the  distribution  of  such 
surplus  moneys  as  may  be  just.  The  referee  shall  in  all 
cases  be  select(Ml  by  the  court.     (Genl.  Rule  64). 

Any  one  who  has  a  lien  against  the  land  which  ecjuity 
would  enforce  may  file  his  claim  for  the  surplus  money. 
(Crombie  v.  Rosen fitock,  U)  Abb.  N.  C.  312;  ^\  Y.  Life 
Ins.  Co.  V.  Mayer,  14  Daly,  318;  affd.  without  op.,  108 
N.  Y.  655). 

Subdivision  3. — Motion  for  Reference. 

The  owner  of  the  equity  of  redemption,  and  every 
party  who  appeared  in  the  cause,  or  who  shall  have  filed 
such  notice  with  the  clerk,  previous  to  the  entry  of  the 
order  of  reference,  shall  be  entitled  to  service  of  a  notice 
of  the  application  for  the  reference  and  to  attend  on 
such  reference,  and  to  the  usual  notices  of  subsequent 
proceedings  relative  to  such  surplus.  But  if  such  claim- 
ant or  such  owner  has  not  appeared,  or  made  his  claim 
by  an  attorney  of  this  court,  the  notice  may  be  served 
by  putting  the  same  into  the  post  office,  directed  to  the 
claimant  at  his  place  of  residence,  as  stated  in  the  notice 
of  his  claim,  and  upon  the  owner  in  such  manner  as  the 
court  may  direct.     (Genl.  Rule,  64). 

It  was  said  in  Mutual  Life  Ins.  Co.  v.  Anthony  (23 
AVk.  Dig.  427;  appeal  dismissed,  105  N.  Y.  57),  that  a 
reference  to  ascertain  the  surplus  is  a  special  proceed- 
ing; l)ut  that  renmrk  seems  unwarranted,  and  it  is  be- 
lieved that  the  authoi-ities  show  this  to  be  merely  a  pro- 
ceeding in  the  foreclosure  action.  { Fowler  v.  Foivler, 
147  N.  Y.  673,  675;  W'iJJcinsoii  v.  /V/fWor/.-.  57  Hun,  191, 
195;  affd.  on  o]».  below,  125  N.  Y.  748;  Matter  of  Gihhs, 


148  I'KACTICE. 

ns  How.  Pr.  o02;}fi(ti((il  Life  Ins.  Co.  v.  Boicen,  47  Barb. 
OlS).  It  is  the  propel'  w;»y  of  r(*;uliiii«j  tho  surplus  au<l 
adjustinjj;  the  validity  of  claims  to  it,  in  all  cases  where 
it  still  remaius  in  the  control  of  the  eourt.  An  action  is 
not  necessary,  however  much  time  may  have  elapsed 
since  the  money  was  deposited  in  court,  if  it  still  re- 
mains undisposed  (d".  Where  the  money  had  been  in- 
vested durin<i  the  life  of  the  tenant  for  life,  it  was  held 
that  after  her  death,  the  persons  who  claimed  a  lien 
upon  the  preniist^s  wei-e  entitled  to  file  their  claim  and 
proceed  by  a  reference  under  rule  64,  above  cited.  (Vrl- 
ten  v.  Voyt,  17  N.  Y.  St.  Kep.  112).  Where  the  mort- 
gage has  been  foreclosed  in  one  court,  and  the  surplus 
moneys  deposited  with  the  county  treasurer  in  pursu- 
ance of  the  judgment  in  that  court,  an  action  cannot  be 
maintained  in  another  court  to  reach  such  surplus;  the 
remedy  is  by  proceedings  in  the  court  in  which  the 
action  was  pending.  (  Flciss  v.  liucldeij,  00  X.  Y.  286). 
A  foreclosure  suit  cannot  be  said  to  have  terminated 
until  the  sui-])lus  moneys  are  disposed  of  in  that  suit. 
The  court  not  only  has  the  power,  but  it  is  its  duty  in 
that  action  to  provide  for  the  distribution  and  disposi- 
tion of  such  moneys.  The  issues  which  arise  upon  a 
reference  are  direct  issues  necessarily  to  be  determined 
before  the  eourt  can  finally  and  completely  distribute 
the  Avliole  of  the  fund  i-esulting  from  the  sale  of  the  mort- 
gaged premises.  [Muiiatl  I iih.  Co.  v.  Bourn,  47  Barb. 
618).  The  motion  foi-  the  ri^ference  under  rule  64  is  to 
be  made  at  a  special  term  of  the  court,  in  which  the 
action  is  iJending,  upon  the  usual  notice.  The  parties 
entitled  to  notice  are  those  specified  in  that  portion  of 
rule  64  above  cited,  and  also,  it  would  seem,  every  one 
known  to  claim  a  lien  on  the  surplus  moneys.  {Felts 
V.  Martin,  20  App.  Div.  60).  If  any  claimant,  or  if  the 
owner  of  the  equity  of  redemption  has  not  appeared  oi* 
made  his  claim,  by  an  attorney  of  the  court  in  which 
the  action  is  pending,  notice  may  be  served  by  putting 
the  same  into  the  post  office  directed  to  the  claimant  at 
his  place  of  residence  as  stated  in  the  notice  of  his  claim 
and  upon  the  owner  in  such  manner  as  the  court  may 
<lirect.     (Genl.  Rule,  64). 


FOKECLOSrUK    OF    MOUHJAGES    AND    LIENS.  149 

The  application  tV>i-  iiisdiul  ions  with  regard  to  serv- 
ing the  notice  of  reference  u])on  the  owner  of  the  chiini 
shonld  be  made  to  the  court  before  the  motion  for  the 
reference.  The  party  moving  for  the  reference  must 
shoAV,  by  aflfldavits,  what  uusatistieil  liens  appear  by  the 
official  searches,  and  whether  any  otUer  or  what  other 
unsatisfied  liens  are  known  by  him  to  exist.  A  notice 
of  the  hearing  must  be  given,  not  only  to  those  persons 
who  have  filed  claims  and  appeared  in  the  cause,  and  to 
the  owner  of  the  ecjuity  of  redemption,  but  to  any  person 
who  appears  by  the  official  searches,  to  have  in  fact  an 
unsatisfied  lien  on  the  moneys.  Notice  to  these  parties 
must  also  be  given  in  such  a  nmnner  as  the  court  shall 
direct.  (Genl.  Kule,  G4).  The  referee  must  in  all  cases 
be  selected  by  the  court.  ( Id. ) .  In  MutiiaJ  Life  Ins.  Co. 
V.  AiithoHji  (23  AA'k.  Dig.  427;  appeal  dismissed,  105  N. 
Y.  57),  it  was  said  that  the  reference  is  "one  to  hear  and 
determine,  subject  to  confirmation";  it  is  believed  that 
all  this  statement  means  is,  that  the  facts  are  to  be  heard 
and  ascertained  on  the  reference,  subject  to  the  approval 
of  the  court  by  confirmation.  General  rule  64,  which  is 
the  source  of  the  authority  to  make  the  order  of  refer- 
ence, specifically  recites  that  the  order  of  reference  is  to 
be  one  "to  ascertain  and  i-eport."  The  order  should  con- 
tain directions  with  regard  to  the  notice  of  hearing  be- 
fore the  referee.  If  no  directions  are  given  in  the  order, 
the  method  of  giving  notice  of  the  hearing  is  that  which 
is  specified  in  vol.  II,  at  page  433. 

Subdivision  4. — Proceedings  Beb^ore  the  Referee. 

The  proceeding  is  an  incidental  or  interlocutory  refer- 
ence under  section  1015  of  the  code;  and  it  is  governed 
by  the  same  rules  as  other  references  of  that  character ; 
which  will  be  found  laid  down  in  vol.  II,  chapter 
XXXIII.  The  same  persons  who  are  entitled  to  notice 
of  the  motion  for  the  reference  are  also  entitled  to  notice 
of  the  hearing  before  the  referee.  (Genl.  Rule,  64; 
Kingsland  v.  Chcticood,  39  Hun,  602;  Felts  v.  Martin, 
20  App.  Div.  60).  The  referee  before  proceeding  to 
take  testimoTiv  in  tlie  matter  should  ascertain  that  all 


150  iMCAc  ricK. 

|>iii(i«'s  who  ;ii-('  cntilU'd  !«»  notice  luuc  hi'cii  notified  to 
athMhl  licfoi-c  liim  on  sndi  rcfcrcnrc,  and  the  faci  thai 
the  notice  has  Itccn  uixcn  siiould  Ix'  stated  in  his  i-e|MHl. 
It  is  not  uecessarv  that  a  person  should  have  tih'd  a 
chiini  in  the  county  (lerlc's  (dlice,  to  entith'  him  to  ap- 
pear before  the  referee.  It  lie  has  a  claim,  his  jtroper 
course  is  to  file  it  in  the  clerk's  otHice  in  I  he  manner  i)re- 
scribed  by  <];eneral  rule  04.  If  he  has  failed  to  do  so, 
and  the  order  of  reference  has  been  entered  upon  the 
ap])licatiou  of  some  othei-  claimant,  and  before  he  is 
a\\are  of  his  rights,  he  may  still  <^o  before  the  i-eferee 
upon  the  reference  and  present  and  establish  his  claim 
there.  (  Dc  Riii/trr  v.  Tru.st<'<'fi  of  St.  Prtcr'.s  Cli.,  2  P.arb. 
Ch.  555;  Kiiifjslaitd  v.  Chcticood,  suina).  If  he  fails  to 
^o  before  the  referee  and  assert  his  claim  to  the  surplus 
moneys,  without  jiivinn  any  reason  therefor,  the  court 
will  not  permit  the  matter  to  be  opened  upon  petition 
subsequently  filed.  {Dc  Ranter  v.  Trustees  ^t.  Peter's 
Ch.,  supra).  It  was  for  a  loni>  time  held  that  the  referee 
only  had  jurisdiction  to  pass  upon  claims  which  were 
actual  liens  upon  the  lands  represented  by  the  surplus 
moneys;  and  that  he  could  not  take  into  consideration 
e(|uitable  rights  (K'ukj  v.  W  est,  10  How.  Pr.  333)  ;  but 
it  is  now  held  that  the  reference  provided  for  in  this 
class  of  cases  is  to  afford  an  opportunity  to  the  i)aities 
to  litigate  and  dispose  of  all  contested  claims  asserted  by 
w^ay  of  liens  u])on  the  fund;  and  that  the  referee  has  full 
power  and  authority  to  hear  all  the  evidence  which  may 
be  offered,  aff'ecting  the  judgment  or  lien  on  which  the 
claim  to  the  surplus  is  founded.  He  may  receive  proof 
that  an  asserted  lien  for  any  cause  is  witlumt  founda- 
tion ;  or  that  it  has  been  overstated  in  amount;  or  othei-- 
Avise  satisfied  and  discharged,  either  by  payment  or  the 
dealing  of  the  parties;  or  that  the  clainmnt  has  placed 
matters  in  the  position  where  the  law  will  not  permit 
him  to  participate  in  the  sur})lus.  In  fact,  the  authority 
the  referee  is  entitled  to  exercise  in  the  hearing  and  dis- 
I)osition  of  the  claims  is  as  extensive  as  the  claims  them- 
selves and  the  legal  and  eciuitable  objections  that  may  be 
made  to  their  allowance.  Any  (juestion  with  I'cgard  to 
the  claims  which  could  be  raised  in  an  independent  or 


F01iECLU8LKE    UK    MUUTGAGES    AND    LIENS.  151 

origiual  at-tiou  cau  be  raised  before  the  referee,  and  de- 
termined with  like  effect.  {Fleiss  v.  BucJdcy,  90  N.  Y. 
286;  Kiiu/shtnd  v.  Chetirood,  supra:  McRohcria  v. 
Pooleij,  5  N.  Y.  St.  Kep.  8o0).  The  surplus  mouevs  are 
regarded  as  real  estate  {Dunning  v.  Ocean  Nat.  Bank, 
61  N.  Y.  497),  and  any  lieu  on  the  land  is  transferred  to 
it.  (Matthcics  v.  Durycv,  3  Abb.  Ct.  App.  Dec.  220). 
It  is  the  lien  existing  at  the  time  of  the  sale  that  is  trans- 
ferred to  the  fund — not  such  as  exist  at  the  time  of  the 
judgment  of  foreclosure.  {Xiitt  v.  Caming,  155  N.  Y. 
309).  Costs  awarded  to  a  junior  mortgagee  in  an  action 
brought  by  her  for  the  foreclosure  of  her  mortgage, 
which  action,  l)y  reason  of  the  interposition  of  a  defense, 
is  not  determined  until  after  the  sale  of  the  premises 
under  a  subsequently  begun  foreclosure  suit  on  the 
senior  mortgage,  are  a  natural  and  necessary  incident 
to  the  mortgage  lieu  itself,  and  are  payable,  together 
with  the  amount  due  on  the  second  mortgage,  out  of  the 
surplus  moneys  arising  from  the  sale  under  the  foreclos- 
ure of  the  senior  mortgage.  {Bushicick  *SV/rs.  Bk.  v. 
Traant,  26  App.  Div.  532;  alfd.  on  op.  below,  158  N.  Y. 
668).  The  general  rules  of  evidence  which  governs  courts 
on  the  trial  of  an  action  apply  to  the  hearing  on  a  refer- 
ence of  this  kind,  and  such  rules  cannot  be  changed  by 
the  order  of  the  court,  unless  in  a  case  where  such 
authorit}^  may  be  specially  given,  or  the  change  relates 
to  some  matter  which  rests  in  the  discretion  of  the 
court.     [Mutual  Life  Ins.  Co.  v.  Anthony,  50  Hun,  101). 

Subdivision  5. — Report  of  Referee,  and  Confirmation. 

The  report  of  the  referee  should  find  facts  and  con- 
clusions of  law.  [Bigelow  v.  Bailey,  59  Hun,  103).  In 
addition  to  showing  what  parties  appeared  before  him, 
and  the  fact  of  the  service  of  the  notice  of  hearing  upon 
all  the  parties  who  are  entitled  to  it,  he  should  show  the 
whole  amount  of  the  surplus  moneys  and  who  is  en- 
titled to  them,  so  that  upon  his  report  the  court  may 
dispose  of  the  whole  fund.  { Franklin  v.  Tan  Cott,  11 
Paige,  129).  The  report,  and  the  testimony  taken  should 
be  filed,  in  the  manner  prescribed  by  general  rule  30. 


152  I'KACTici:. 

S(M'  vol.  11,  i»|).  441,  442.  As  to  the  exceptions  to  the  le- 
|>oi'f  and  the  inot  ion  to  eontii-ni  it  see  \  (»l.  1 1,  |»|».  442,  444. 
It  lias  lieen  hehl  that,  conti-arv  to  the  nHe  as  to  refer- 
ences in  licneral,  notice  of  the  motion  to  contirni  th(» 
i-efei-ee's  i-e|)ort  in  a  snrjdns  [)roce(Mlinii,  ninst  he  serx'ed 
on  cNcry  partv  who  has  ai»i»eare<l  or  tih'd  a  claim, 
not  withstand  inii  tl"'  ahsence  of  exceptions  after  dne  no- 
tice <d"  the  tiiinn  of  tlie  referee's  rei>oi-l.  (  \  <iii  \()a.st  V. 
CKs/iiiif/,  ;J2  Ai»p.  Div.  1  l(i  I.  Tliis  rnlini*  is  based  ou  the 
provisions  (d'  ucneral  rnle  (>4,  refpiii-inii-  "the  nsual  no- 
tice (if  snhseipient  proceedin<;s  rehitive  to  snch  snrplus." 
The  (Mrnrt  may  confirm  or  set  aside  the  referee's  report, 
or  ref<*r  it  hack  to  him;  it  is  not  at  lil)erty  to  chauj^e  a 
tindiug  already  made.  (MiilKdl  Life  Ins.  Co.  V.  An- 
tJionijy  23  Wk.  Dij^.  427;  appeal  dismissed,  105  N.  Y.  57). 
It  was  held  in  Dold  v.  Ihujiicriij  (  11  Rep.  74()),  that  the 
court  might  upon  motion  to  coutirm  the  report,  direct  a 
ditlerent  disposition  of  the  fund  than  that  directed  by 
the  referee;  but  this  case  is  opposed  to  the  case  of  the 
Mutual  Life  Jus.  Co.  v.  Anthony  [supra).  In  all  cases 
where  the  report  of  the  referee  is  not  satisfactory,  it  is 
the  Ix'tter  ])ractice  to  send  it  l>ack  for  a  further  hearing. 
There  is  no  doubt  of  the  power  of  the  court  to  direct  that 
course.  {Mutual  Ufe  Ins.  Co.  v.  Salem,  3  Hun,  117). 
The  court  has  authority  to  allow  the  costs  of  the  pro- 
ceedings, which  can  be  onl}'  motion  costs  and  the  fees  of 
the  referee.  {McDermott  v.  Hcnnesy,  9  Hun,  50).  No 
other  allowances  can  be  granted.  {German  8av.  Bank 
V.  Sharer,  25  Hun,  409;  Am.  Mortgage  Co.  v.  Butler,  36 
Misc.  253). 


FORECLOSURE   OF    MORTGAGES   AND   LIENS.  153 

ARTICLE  VI. 

STRICT  FORECLOSURE  OF  MORTGAGE. 

SECTION. 

1.  History  and  use  of  tlio  proceeding. 

2.  Proceedings  in  the  action. 

Sec.    1.    History  and  use  of  the  proceeding. 

The  action  for  strict  foreclosure  was  the  first  form  of 
foreclosure  adopted  by  the  courts  of  equity,  and  until 
quite  recent  times,  was  the  only  form.  Although  this 
form  of  foreclosure  has,  through  the  actions  of  the  courts 
and  hj  statutory  enactments,  largely  given  away,  within 
the  last  hundred  years,  to  the  more  equitable  mode  of 
foreclosure  and  sale,  it  is  still  used  by  the  courts  of 
equity  as  the  mode  best  adopted  to  a  few  special  cases. 
(Jones  on  Mort.,  §  1538).  It  was  the  only  remedy 
upon  a  mortgage  when  it  was  regarded  as  a  conditional 
sale  of  the  laud,  rather  than  as  a  mere  security.  The 
effect  of  a  judgment  of  strict  foreclosure  is  that  the 
mortgagee  shall  take  the  land  for  the  debt,  {La using 
V.  Goelety  9  Cow.  340,  352).  The  court  of  chancery 
has  jurisdiction  of  actions  for  strict  foreclosure,  exclus- 
ive of  any  statute.  (KcnshaiP  v.  Thompson,  4  Johns. 
Ch.  609) .  The  aim  of  the  action  is  to  obtain  a  judgment 
against  the  defendants  for  the  payment  of  the  mortgage, 
interest  and  costs  within  a  day  certain  to  be  fixed  by  the 
court,  or  that  in  default  of  such  payment,  the  defendants 
and  all  persons  claiming  under  them  shall  be  barred  and 
foreclosed  of  their  claim  and  e(iuity  of  redemption  in  the 
mortgaged  premises;  and  this,  without  any  sale  of  the 
premises  being  had.  It  is  a  severe  remedy,  and  trans- 
fers the  absolute  title,  without  any  sale,  no  matter  what 
the  value  of  the  premises  may  be.  (Bolles  v.  Duff,  43  N. 
Y.  469 ) .  It  has  been  held  proper,  however,  in  the  case  of 
a  mortgage  given  for  the  entire  purchase  money,  when 
the  value  of  the  premises  is  not  more  than  the  debt,  and 
the  mortgagee  does  not  appear  in  the  suit;  also  where  the 
mortgagee  is  in  possession  under  a  title  from  the  mort- 
gagor, for  the  purpose  of  cutting  otf  subsequent  liens  or 
incumbrances;  as  in  case  one  has  purchased  in  good 


154  I'RACTICE. 

faith  at  a  inortiiaiio  sale,  which  is  not  conchisivo  anainst 
some  iiiriiiiibi-anct'i-  wlio  is  not  nuulc  a  party  t<>  \\w  suit; 
or  where  a  foreclosure  sale  was  void  lor  lack  of  jurisdic- 
tion in  the  court  lo  make  it,  and  the  purchaser  lias  ^one 
into  possession.  (.Jones  on  .Mort.  g  loiO;  Kcnddll  v. 
Treadwell,  5  Abb.  Pr.  1(1;  lUiudUt  v.  (iiUmun,  4  Paij;-e, 
58). 

It  has  also  been  held  proper  in  cases  where  the  mort- 
gajie  is  iu  the  form  of  an  absolute  deed,  without  any 
written  defeasance.  {Nome  V.  Fi.sJicr,  2  Barb.  Th.  551) ). 
A  strict  foreclosure  may  also  be  had,  it  is  said,  upon  a 
land  contract  for  a  failure  of  the  vendee  to  make  the 
payments  stipulated  for.  (Jones  on  ^lort.  §  1541).  It 
has  also  been  held  to  be  the  proper  remedy  to  be  resorted 
to  in  the  courts  of  this  state,  where  the  property  is  sit- 
uated in  another  state,  and  the  parties  themselves  are 
within  the  jurisdiction  of  the  court  and  subject  to  its 
authority.  {Bouse  v.  Lockicood,  40  Hun,  532).  In 
everv  case  where  a  mortgagee  has  no  personal  demand 
against  the  mortgagor,  or  where  the  pledge,  if  not  re- 
deemed, is  by  agreement  of  the  parties  to  be  taken  upon 
the  debt,  the  strict  foreclosure  may  be  a  fit  and  proper 
remed}'  for  the  mortgagee.  {Lansing  v.  Goclct,  9  (.'ow. 
346,  356;  House  v.  Lockicood,  supra).  The  doctrines 
laid  down  in  these  earlier  cases  seem  all  to  be  subject, 
however,  to  the  limitations  placed  upon  them  by  the 
court  of  appeals  in  more  recent  cases  {Moulton  v.  Cor- 
nish, 138  X.  Y.  133;  Denton  v.  Ontario  Co.  Xat.  Bk.,  150 
N.  Y.  126, 134),  namely  that  strict  foreclosure  is  to  be  al- 
lowed only  where  some  dominating  equity  requires  a 
departure  from  the  ordinary-  rule  reijuiring  a  sale  in  all 
cases.  No  such  equity  was  found  to  exist  in  either  of 
the  cases  cited.  It  was  said,  however,  that  such  an 
equity  would  be  deemed  present  where  a  purchaser  at  a 
sale  under  a  prior  mortgage,  or  a  mortgagee  in  posses- 
sion, purchased  in  good  faith,  relying  on  the  sufficiency 
and  regularity  of  the  proceedings,  and  a  subsequent 
lienor,  having  knowledge  of  the  sale,  jx'rmitted  the  i)ur- 
chaser  to  make  the  purchase  and  enter  into  possession 
without  disclosing  the  existence  of  his  incumbrance,  or 
calling  attention  to  the  defect  in  the  proceedings.     The 


FOKECLUSrUE    OF    MORTGAGES    AND    LIENS.  155 

opiuions  Id  the  cases  cited  j^o  to  show  that  strict  fore- 
closure is  well-nigh  obsolete,  as  a  practical  matter. 
Uuder  auy  circninstaiices,  this  remedy  will  never  be  al- 
lowed, unless  it  appears  that  the  whole  debt  has  become 
due.     (Jones  on  Mort.    §1557). 

Sec.    2.    Proceedings  in  the   action. 

The  proceedings  in  the  action  for  strict  foreclosure 
are  the  same  in  almost  all  respects  as  in  the  ordinary 
action  for  foreclosui-e  and  sale.  The  same  persons 
should  be  made  parties,  except  in  cases  where  the  object 
of  the  action  is  to  cut  off  the  right  of  some  parties  who 
have  been  omitted  from  an  action  for  foreclosure  for  a 
sale  of  the  premises.  In  all  other  cases  the  owner  of  the 
equity  of  redemption  is  a  necessary  party  defendant  as 
he  is  the  only  one  wholly  indispensable.  (Jones  on 
Mort.  §  1558).  If  the  action  is  brought,  however,  to 
perfect  the  title  as  agaiust  persons  who  have  been  omit- 
ted from  the  ordinary  action  of  fcu'eclosure  and  sale, 
such  omitted  persons  are  the  only  necessary  parties  de- 
fendant. If  it  is  to  perfect  the  title  after  a  foreclosure 
and  sale  which  was  void,  all  parties  having  any  claims 
upon  the  property  subsequent  to  the  mortgage  are 
proper  parties. 

The  pleadings  are  practically  the  same  as  those  in  an 
ordinary  action  of  foreclosure.  It  is  proper,  if  the  plain- 
tiff sees  lit,  that  he  shall  in  his  complaint  offer  t(»  take 
the  mortgaged  premises  in  full  payment  and  satisfaction 
of  his  debt.  (Jones  on  Mort.  §  1560).  A  form  of  the 
complaint  in  such  action,  and  the  demand  of  relief  are 
found  in  Kcinhill  v.  Treadicdl  (5  Abb.  Pr.  16;  s.  c.  14 
How.  165).  Judgment  can  only  be  entered  upon  appli- 
cation to  the  court ;  it  is  usually  for  the  foreclosure  and 
forever  barring  the  defendants  of  and  from  all  right, 
title  or  equity  of  redemption,  unless  they  redeem  and 
pay  the  mortgage  before  a  day  certain  and  fi.Ked  in  the 
judgment.  (KenduU  v.  TrcadjrcJL  siipni;  Jones  on 
Mort.  §  1561).  It  it  an  interlocutory  judgment.  The 
time  to  redeem  is  usually  six  mouths  from  the  entry  of 
the  judgment.  {McK'uistrn  v.  Emerson,  3  Johns.  Ch. 
466,  n. ).    The  same  is  in  all  cases  discretionary  with  the 


15(.)  I'KAcrui:. 

coui-t,  aud  altlioiiuli  il  is  iisiiailv  ii»il  less  Hum  six 
iiKtiiths,  a  loiiiicr  lime  iiiav  lie  iiivcn  in  a  jh-oixm-  case. 
(  J'rriiK  V.  hiniii,  4  .lolnis.  (  Mi.  14(h  .  Al'lci-  I  he  cut  r.v  of 
judniiiciit,  the  tiiiu'  will  not  Ik*  ciilai-^vfl.  (Id.l.  Tlic 
]>la(('  where  the  I'edeiiiittioii  is  to  l>e  made,  should  he 
fixed  ill  (he  jiiduiiieiit.  The  foi-iii  of  juduiiieiit  in  such  an 
action  is  to  he  found  in  Kendall  \.  'rr<(nlir(ll  {.siiiini}. 
If  one  of  the  parties  defendant  is  au  infant,  he  is  usually 
entitled  to  a  da.v  in  court  after  he  heeonies  of  aj^e.  The 
forniei'  i)ractice  was  to  allow  him  six  months  after  c()m- 
in<j;  of  aj^-e;  not  to  ^o  into  the  accounts,  hut  to  show  error 
in  the  judgment.  (Jones  on  Mort.  §  1564;  .l/(7/.v  v.  J)<ii- 
nis,  3  Johns.  Ch.  307).  A  jud,i;iiient  feu-  strict  foreclos- 
ure which  does  not  given  an  infant  tlefendaut  his  day  in 
court  after  he  becomes  of  age,  would  not  be  valid  against 
him.  {Mills  V.  Dennis,  supra).  The  amount  which  is 
to  be  paid  upon  the  redemi)tion  should,  if  possible,  be 
fixed  in  the  judgment;  but,  if  it  is  not  so  fixed,  provision 
should  be  made  for  the  a])i)oiutment  of  a  referee  to  fix 
the  amount,  if  notice  of  the  election  to  redeem  be  given 
by  the  defendant.  If  the  amount  is  not  fixed  in  the 
judgment,  either  party  may  give  notice  of  a  motion  for 
a  reference  for  that  purpose.  The  proceedings  upon 
such  a  reference  will  be  the  same  as  those  ui)on  any 
other  reference  to  take  and  state  an  account.  If  the 
amount  is  fixed  in  the  judgment,  or  if  the  amount  has 
been  fixed,  and  the  defendant  desires  to  redeem,  he 
should  attend  at  a  time  and  place  fixed  in  the  judgment, 
ready  to  pay.  Costs  are  in  the  discretion  of  the  court 
as  in  other  e(|uity  cases.  If  the  value  of  the  land  is 
equal  to  the  amount  of  the  mortgage  debt,  the  effect  of  a 
judgment  of  strict  foreclosure  is  to  extinguish  the  debt 
(Mftrf/an  v.  1*1  ii nth.  9  Wend.  287)  ;  otherwise  the  strict 
foreclosure  with(mt  a  sale,  does  not  extinguish  the  debt 
which  is  secured  by  the  obligation  to  which  the  mort- 
gage is  collateral,  except  to  the  extent  of  the  value  of  the 
premises  which  can  be  ascertained  in  a  suit  at  law  upon 
the  obligation,  {i^pcncer  v.  HarfonL  4  Wend.  381;  De- 
(Snnit  V.  (rraham,  1  N.  Y.  Leg.  Obs.  75;  Jones  on  Mort. 
§  1569). 


FORECLOSURE   OF    MORTGAGES   AND    LIENS.  157 

ARTICLE  VII. 

FORECLOSURE  OF  LIENS  ON   CHATTELS. 
SECTION. 

1.  When  and  where  niaintained. 

2.  Proceedings  in  the  action. 

3.  Seizure  of  the  chattel. 

4.  Proceedings  in  courts  not  of  record. 

Sec.    1.    "When  and  vrhere  maintained. 

An  action  may  be  niaintained  to  foreclose  a  lien  upon 
a  chattel,  for  a  sum  of  money,  in  any  case  where  such  a 
lien  exists  at  the  commencement  of  the  action.  The 
action  may  be  brought  in  any  court,  of  record  or  not  of 
record,  which  would  have  jurisdiction  to  render  a  judg- 
ment, in  an  action  founded  upon  a  contract,  for  a  sum 
equal  to  the  amount  of  the  lieu.     (Co.  Civ.  Proc.  §  1737). 

Prior  to  the  provisions  of  the  code  of  civil  procedure 
on  this  subject  the  practice  in  these  actions  was  that 
mentioned  in  chapter  738  of  the  Laws  of  1869,  which, 
however,  provided  only  for  the  foreclosure  of  liens  of 
hotel  and  boarding-house  keepers.  The  section  above 
(juoted  enlarges  the  provisions  of  that  law.  This  sec- 
tion was  not  necessary  to  give  the  court  power  to  fore- 
close a  lien  upon  a  chattel.  An  action  in  equity  always 
lay  to  foreclose  a  chattel  mortgage;  and  while  the  rem- 
edy by  sale  under  the  power  of  sale  without  resort  to 
judicial  proceedings  was  in  most  cases  more  speedy  and 
effectual  as  a  means  of  extinguishing  the  equity  of  re- 
demption, and  has  to  a  great  extent  superseded  the 
reason  of  the  action  of  foreclosure  and  sale,  the  right  to 
foreclose  by  action  has  not  been  taken  away.  In  the 
case  of  a  pledge,  the  pledgee  has  the  right  to  go  into 
('(juity  to  obtain  a  judgment  for  the  sale  of  the  pledge, 
although  a  valid  sale  of  the  pledge  may  be  made  without 
any  judicial  action  or  judgment.  (Briggs  v.  Ol'wev,  68 
N.  Y.  336).  Without  any  statute,  an  action  in  equity 
lay  to  enforce  a  lien.  {Fox  v.  McGregor,  11  Barb.  41 ;  2 
Kent's  Com.  612;  See  also  Trust  v.  Firsson,  1  Hilt.  292). 
The  statute  makes  no  regulation  for  the  proceeding  in 
the  action,  except  such  as  are  contained  in  this  article. 


158  I'UAtTU'i:. 

Ir  iiuist  ho  liovcriKHl  ill  Jill  otlici-  icsiiccts  l»_v  the  ordiiuiiy 
nilcs  wliicli  Mpjdv  to  jKlioiis  of  (lie  sjiiiu'  kind  in  tlie 
(■•Mirl    in  which  it    is  hroiiiilit. 

This  arlich'  <h)(*s  not  jilTcct  any  cxistini;  riuhl  or  i'<'ni- 
('(Iv  to  foi'ci  lose  or  satisfy  a  lien  upon  ;i  chaUcI,  without 
action;  and  il  (h)es  not  apply  to  a  case,  where  another 
nio(h'  of  enforcing  a  lien  upon  a  chattel  is  specially  pre- 
scrihed  hy  law.     (Co.  Civ.  Proc.   §  1741). 

Sec.    2.    Proceedings   in   the   action. 

The  action  is  hrought  in  the  same  manner  as  any  other 
action.  A  person  claiming  a  lien  should  be  the  plaintiff ; 
the  owner  of  the  property  and  all  pei'sons  claiming  an 
interest  in  it  should  be  defendants.  It  is  not  a  local 
action;  and  the  rules  with  regard  to  the  place  of  trial 
will  be  found  in  volume  II,  page  134. 

The  complaint  sliould  allege  the  facts  showing  that  the 
plaintiff  had  a  lien  at  the  time  of  the  commencement  of 
the  action,  and  the  amount  due  on  the  claim  for  the  se- 
curity of  which  the  lien  exists.  If  there  are  other  de- 
fendants than  the  one  who  pledges  the  lien,  the  facts 
should  be  stated  which  show  that  they  are  necessary  and 
proper  parties.  If  a  personal  judgment  is  asked  against 
any  defendant,  the  facts  showing  liis  liability  should  be 
stated.  The  relief  to  be  demanded  should  be  for  a  sale 
of  the  property,  and  for  a  personal  judgment  against  any 
one  of  the  defendants  against  whom  it  is  desired.  The 
rules  for  pleading  are  the  same  as  in  any  other  action. 
The  code  gives  no  special  regulations  with  regard  to 
them.  The  plaintiff  would  be  entitled  to  a  provisional 
remedy  in  tliis  action  in  a  proper  case  as  in  any  other 
action.  As  to  the  special  remedy  of  the  seizure  of  a 
chattel,  see  section  three,  infni. 

The  action  is  not  triable  by  a  jury.  (Blake  v.  Crowley , 
44  Hun,  344).  It  must,  therefore,  be  brought  to  trial  at 
a  special  term,  like  other  actions  which  are  to  be  tried 
by  the  court.  The  proceedings  on  default  or  at  ti-ial  are 
the  same  as  thos(^  of  actions  to  foreclose  a  mortgage. 
(See  article  III,  supra.) 

In  an  action  brought  in  a  court  specified  in  section 
1738,   final   judgment,    in    favor  of  the   plaintiff,   must 


FORECLOSUKE   OF    MORTGAGES   A^"D    LlEiNiS.  151) 

specify  the  aiiioimt  of  the  lien,  and  direct  a  sale  of  the 
chattel  to  satisfy  the  same  and  the  costs,  if  any,  by  a 
referee  appointed  thereby,  or  an  ofticer  designated 
therein,  in  like  manner  as  where  a  sheriff  sells  personal 
propertj'  b^^  virtne  of  an  execution;  and  the  applicatign 
by  him  of  the  proceeds  of  the  sale,  less  his  fees  and  ex- 
penses, to  the  payment  of  the  amount  of  the  lien,  and  the 
costs  of  the  action.  It  must  also  provide  for  the  pay- 
ment of  the  surplus  to  the  owner  of  the  chattel,  and  'for 
the  safe  keeping  of  the  surplus,  if  necessary,  until  it  is 
claimed  b}^  him.  If  a  defendant,  upon  whom  the  sum- 
mons is  personally  served,  is  lial)le  for  the  amount  of  the 
lien,  or  for  any  part  thereof,  it  may  also  award  payment 
accordingly.     (Co.  Civ.  Proc.  §  1739). 

The  property,  when  sold,  is  to  be  sold  in  the  same  way 
as  other  personal  property  upon  an  execution;  as  to 
which  see  vol.  II,  p.  1030.  The  notice  of  sale  should  re- 
fer to  the  judgment,  and  should  state  that  the  sale 
is  made  pursuant  to  it. 

Sec.    3.    Seizure    of    the    chattel. 

Where  the  action  is  brought  in  the  supreme  court,  the 
city  court  of  the  city  of  New  York,  or  a  county  court,  if 
the  plaintiff  is  not  in  possession  of  the  chattel,  a  war- 
rant may  be  granted  by  the  court,  or  a  judge  thereof, 
commanding  the  sheriff  to  seize  the  chattel,  and  safely 
keep  it  to  abide  the  final  judgment  in  the  action.  The 
provisions  of  title  3  of  chapter  VII  of  the  code 
apply  to  such  a  warrant,  and  to  the  proceedings  to  pro- 
cure it  and  after  it  has  been  issued,  as  if  it  was  a  w^ar- 
rant  of  attachment,  except  as  otherwise  expressly  pre- 
scribed in  this  article.     ( Co.  Civ,  Proc.  §  1738 ) . 

The  authority  given  in  this  section,  does  not  revive  a 
lien  which  has  been  lost,  because  the  plaintiff  has  parted 
with  the  possession  of  the  property.  It  will  be  noticed 
that  section  1737,  which  authorizes  the  action,  provides 
that  it  may  be  nmintained  in  any  case  where  the  lien 
exists  at  its  commencement.  Section  1738  does  not  en- 
large those  words.  (Throop's  Code  note  to  §  1738). 
The  regulations  with  regard  to  the  issue  of  attachment 
are  found  at  vol.  I,  p.  612,  ct  Hcq.    The  affidavit  to  pro- 


160  I'KACTICE. 

cure  a  warrant  of  attaclnncnt  niulor  this  section,  need 
not  state  lliat  the  amount  unpaid  on  tiie  lieu  is  above  all 
counter-elaiiiis.  (Blake  v.  Croirln/,  44  llun,  344).  Tiie 
grantinji  of  a  wai-i-anl  of  attaclmient  in  these  eases  is 
not  a  matter  of  course.  The  rules  prescribed  for  pro- 
curing a  warrant  of  attachment  ai)ply  to  applications 
for  attachment  made  under  this  section;  and  the  affi- 
davit should,  in  all  cases,  state  the  reasvjus  why  the 
granting-  of  the  attachment  is  proper. 

Sec.    4.    Proceedings  in  courts  not   of  record. 

Where  the  action  is  brought  in  a  court,  other  than  one 
of  those  specified  in  section  1738,  if  the  plaintiff  is  not 
in  ])()ssession  of  the  chattel,  a  warrant,  comnuinding  the 
proper  officer  to  seize  the  chattel,  and  safely  keep  it  to 
abide  the  judgment,  may  be  issued,  in  like  manner  as  a 
warrant  of  attachment  may  be  issued  in  an  action 
founded  upon  a  contract,  brought  in  the  same  court;  and 
the  provisions  of  law,  applicable  to  a  warrant  of  attach- 
ment, issued  out  of  that  court,  apply  to  a  warrant,  issued 
as  ])rescribed  in  this  section,  and  to  the  proceedings  to 
procure  it,  and  after  it  has  been  issued ;  except  as  other- 
wise specified  in  the  judgment.  A  judgment  in  favor  of 
the  plaintiff,  in  such  an  action,  must  correspond  to  a 
judgment,  rendered  as  prescribed  in  section  1739,  ex- 
cept that  it  must  direct  the  sale  of  the  chattel  by  an  of- 
ficer' to  whom  an  execution,  issued  out  of  the  court,  may 
be  directed ;  and  the  payment  of  the  surplus,  if  its  safe 
keeping  is  necessary,  to  the  county  treasurer,  for  the 
b(>nefit  of  the  owners.     (Co.  Civ.  Proc.  §  1740). 

For  the  regulations  with  regard  to  the  practice  in 
these  courts,  reference  is  made  to  the  statutes  respect- 
ing them. 


FORECLOSURE   OF    MORTGAGES   AND    LIENS.  161 

ARTICLE  VIII. 

FORECLOSURE    OF    MECHANICS'    LIENS    ON    REAL    PROPERTY. 

SECTION. 

1.  Ill  what  courts  action  for,  may  be  brought. 

2.  Parties. 

3.  Proceedings  in  the  action. 

4.  Offer   to   pay   into   court. 

5.  Judgment. 

6.  Costs  and  disbursements. 

7.  Discharge  of  lien. 

8.  Actions  in  courts  not  of  record. 

Sec.    1.    In   ^vhat  courts  action  for,  may  be  brought. 

It  is  not  the  purpose  of  this  article  to  treat  exhaus- 
tively the  substantive  law  governini^-  the  creation  and 
existence  of  mechanics'  liens;  only  an  elaborate  treatise 
would  suffice  for  such  a  purpose.  This  article  is  de- 
signed to  deal  only  with  the  adjective  side  of  the  en- 
forcement of  such  liens  in  the  courts,  as  that  is  provided 
for  by  the  statutes  on  the  subject.  The  substantive 
right  to  such  liens  is  purely  the  creature  of  statute,  and, 
therefore,  we  find  the  practice  and  procedure  governing 
the  enforcement  of  them  a  matter  of  statutory  regula- 
tion, in  large  measure. 

A  mechanic's  lien  on  real  property  may  be  enforced 
against  such  property,  and  against  a  person  liable  for 
the  debt  upon  which  the  lien  is  founded,  by  an  action, 
by  his  lienor,  his  assignee  or  legal  representative,  in  a 
court  Avhich  has  jurisdiction  in  an  action  founded  on  a 
contract  for  a  sum  of  money  equivalent  to  the  amount 
of  such  debt.  (Co.  Civ.  Proc.  §  3309).  This  section 
provides,  of  course,  for  actions  both  in  courts  of  record 
and  courts  not  of  record.  There  are  specific  provisions 
covering  such  actions  in  courts  not  of  record  (Co.  Civ. 
Proc.  §§  3104-3410)  which  will  be  considered  hereafter. 

Of  course,  the  jurisdiction  of  the  supreme  court  over 

the  action  is  undoubted.    Such  an  action  in  the  supreme 

court  must  be  brought  in  the  county  where  the  real 

property  affected  is  situated.      (Co.  Civ.  Proc.  §  982; 

11 


162  I'KACTICE. 

vol.  11,  pp.  llIT,  (■(  s(<i.  I.  The  count V  ((luit  viiKiucslion- 
ably  has  jurisdiction  of  such  an  action  where  not  to  ex- 
ceed f2,0()(l  is  iu\(»l\('(l.  if  both  I  he  pi-operly  atfected  is 
situated  in  the  county  where  liie  action  is  l)i'ou.uht,  and 
the  (h'fen(hint  also  resiih's  there.  If  the  former  condi- 
tion is  al»sent  and  the  hitter  exists,  it  wiuihl  still  seem 
that  the  wordinii  of  section  )>.'>!)!)  is  suflicient  to  liive  the 
county  court  jurisdiction,  inasmuch  as  it  would  clearly 
have  jurisdiction  "  in  an  action  founded  on  a  contract 
for  a  sum  of  money  eciuivalent  to  the  amount  of  the 
debt."  \\'here,  however,  the  defendant  does  not  reside 
within  the  county,  this  wording  of  section  3309  would 
seem  to  exclude  jurisdiction  by  the  county  court  even 
though  the  property  affected  was  situated  within  the 
county.  Under  section  7  of  chapter  342  of  the  laws 
of  1885,  the  predecessor  of  section  3391)  of  the  code,  it 
was  held  that  the  county  court  had  jurisdiction  in  such 
a  case  (Raven  v.  ^m\th,  148  N.  Y.  415)  ;  but  such  pre- 
decessor statute  contained  a  provision  that  is  not  found 
in  section  3399,  namel}-,  that  the  action  might  be 
brought  "  in  a  court  of  record  in  the  city  or  county 
where  the  property  is  situated;"  so  that  the  case  cited 
is  not  authoritative  under  the  present  statute.  A 
course  of  reasoning  like  that  suggested  as  to  the  county 
court,  has  been  applied  to  the  jurisdiction  of  the  city 
court  of  the  city  of  New  York,  and  it  was  accordingly 
held  that  the  last-mentioned  court  had  not  jurisdiction 
of  an  action  to  foreclose  a  mechanic's  lien  where  pro- 
cess could  not  be  served  on  the  defendant  in  the  city 
of  New  York,  notwithstanding  the  fact  that  the  prop- 
erty affected  was  situated  in  that  city.  (McCann  v. 
Ocrdiiuf,  29  Misc.  283). 

A\  hat  has  been  said,  and  what  is  said  further  in  sec- 
tion 8  of  this  article  (infra)  shows  sufficiently  the  juris- 
diction of  the  various  courts  over  these  actions. 

Sec.    2.    Parties. 

In  an  action  in  a  court  of  record  the  following  are 
necessary  parties  defendant: 

1.  All  lienors  having  liens  against  the  same  property 
or  any  part  thereof. 


FORECLOSURE   OF    MORTGAGES   AND   LIENS.  IGo 

2.  All  otliei'  persons  having  subsequent  liens  or  claims 
against  the  property,  by  judgment,  mortgage  or  other- 
wise, and 

3.  All  persons  appearing  by  the  records  in  the  office 
of  the  county  clerk  or  register  to  be  overseers  of  such 
property  or  any  part  thereof.  Every  defendant  who  is 
a  lienor  shall,  by  answer  in  the  action,  set  forth  his  lien, 
or  he  will  be  deemed  to  have  waived  the  same,  unless  the 
lien  is  admitted  in  the  complaint,  and  not  contested  by 
another  defendant.  Two  or  more  lienors  having  liens 
upon  the  same  property,  or  any  part  thereof,  may  join 
as  plaintiffs.      (Co.  Civ.  Proc.  §  3402). 

As  the  action  in  a  court  of  record  is  a  suit  in  equity 
{Kenney  v.  Apgur,  93  N.  Y.  539 ;  HchUlinger  Cement  Co. 
V.  Arnott,  152  N.  Y.  584)  it  is  made  compulsory  that  all 
lienors,  etc.,  should  be  nmde  parties,  so  that  all  their 
rights  may  be  determined  in  the  one  suit.  But  only 
lienors  or  claimants  against  the  property  by  way  of 
judgment,  mortgage  or  otherwise  than  by  way  of  me- 
chanics' liens,  whose  claims  are  subsequent  to  the  plain- 
tiff's lien,  are  proper  parties  under  this  section.  {Alyca 
V,  Cits.  tiav.  Bk.,  12  App.  Div.  574;  aft'd.  on  op.  below, 
162  N.  Y.  597;  Broun  v.  Danforth,  37  App.  Div.  321). 

If  certain  subsequent  lienors  have  not  been  made 
parties  to  the  action  to  foreclose  plaintiff's  prior  lien, 
the  court  cannot  grant  a  writ  of  assistance  to  remove 
from  the  premises  sold  in  fo>reclosure  such  subsequent 
lienors.  {Matter  of  Burnham,  64  App.  Div.  596). 
This  shows  the  importance  of  making  all  persons  hav- 
ing rights  or  claims  subsequent  to  the  plaintiff's  and 
prior  to  action  begun,  parties  to  the  action. 

It  will  be  noted  that  subdivision  3  of  section  3402  re- 
quires every  defendant  who  is  a  lienor  to  set  forth  his 
lien  by  answer,  and  provides  as  a  penalty  for  failure  so 
to  do  that  the  lien  shall  be  deemed  waived  unless  the 
lien  is  admitted  in  the  complaint  and  not  contested  by 
other  defendants;  it  is  thus  always  essential  that  such 
lienor  defendants  should  set  up  their  lien  by  answer. 
{McConologue  v.  Larkins,  32  Misc.  166). 


104  1'Kactr"l:. 

Sec.    3.    Proceedings  iu  the  action. 

The  ]iro\  isions  nf  ihc  code  of  cIn  i|  i)r(K-e(liin',  ivlatiuj^ 
to  actions  I'oi-  the  foi-cchtsurc  of  a  iiiortj^age  upon  real 
liropcrtv,  and  the  sale  and  the  disti'ihution  of  tlic  ])!•(»- 
foetls  theirof  apply  to  actions  in  a  court  of  record,  to 
enforce  mechanics'  liens  on  real  i)roperty,  except  as 
otherwise  stated  in  this  article  of  this  work.  If  actions 
are  brouj^ht  h\  dilferent  lienors  in  a  court  of  record,  the 
court  in  which  the  first  action  was  brought,  may,  upon 
its  own  motion,  or  upon  the  api)licatiou  of  any  party 
in  any  of  such  actions,  consolidate  all  of  such  actions. 
(Co.  Civ.  Proc.  §  3401). 

All  the  i)rovisions  as  to  real  estate  mortgage  fore- 
closure actions,  referred  to  in  this  section,  have  been 
discussed  in  the  foregoing  articles  of  this  chapter,  to 
which  reference  is  here  nmde. 

The  remedy  b^^  way  of  enforcement  of  the  lien  is 
cumulative;  that  is,  an  action  at  law  on  the  contract  is 
no  bar  to  proceeding  by  way  of  lien  and  an  action  to 
enforce  it.  {Poiccr  v.  On  nurd  Con.s.  Co.,  39  Misc.  707, 
and  cases  cited).  If  the  action  on  the  contract  has 
been  brought,  sections  1G29  and  1G30  of  the  code  w'ould 
seem  to  re(]uire  the  complaint  in  the  foreclosure  suit 
to  state  that  fact  and  the  status  of  such  action.  (See 
Burhiy  v.  Kick,  35  X.  V.  Suj)]).  ()7(i;  s.  v.,  2.")  Civ.  Proc. 
Rep.  62). 

The  provisions  of  section  3401  as  to  consolidation, 
have  been  held  to  be  no  broader  than  section  817  of  the 
code,  dealing  with  the  consolidation  of  actions  gener- 
ally; and  the  former  should  be  construed  as  the  latter 
has  been.  { l-Jrkciirotli  v.  /v //"/'.  20  ^lisc.  508).  As  to 
the  rules  governing  consolidation  under  section  817, 
see  vol.  I  of  this  work,  p.  301,  ct  srq.  If  the  first  action 
is  brought  in  the  city  court  of  the  city  of  New  York, 
that  court  may  order  a  consolidation,  although  a  sub- 
se(iiient  action  is  brought  in  the  supreme  court.  {Boyd 
V.  Htcirart,  30  Abb.  N.  (\  127). 

Sec.    4.    Offer  to   pay   into  court. 

At  any  time  after  an  action  is  brought  under  the  pro- 
vision  of  the  sections   of  the  code   treated    of  in    this 


FORECLOSURE   OF    MORTGAGES   AND    LIENS.  165 

article,  the  owner  may  make  aud  tih^  with  the  clerk  with 
whom  the  notice  of  lien  is  filed,  if  in  a  court  of  record, 
and  if  in  a  conrt  not  of  record,  with  the  court,  an  offer 
to  pay  into  court  the  sum  of  money  stated  therein,  or 
to  execute  and  deposit  securities  which  he  may  describe, 
in  discharge  of  the  lien,  and  serve  upon  the  plaintiff  a 
copy  of  such  otter.  If  a  written  acceptance  of  the  offer 
is  tiled  with  such  clerk,  or  court,  within  ten  days  after 
its  service,  aud  a  copy  of  the  acceptance  is  served  upon 
the  party  making  the  offer,  the  court,  upon  proof  of 
such  offer  and  acceptance,  may  make  an  order,  that  on 
depositing  with  such  clerk,  or  court,  the  sum  so  offered, 
or  the  securities  described,  the  lien  shall  be  discharged, 
and  that  the  money  or  securities  deposited  shall  take 
the  place  of  the  jn'operty  upon  which  the  lien  existed, 
and  shall  be  subject  to  the  lien.  If  the  offer  is  of  money 
only,  the  court,  on  application  and  notice  to  the  plain- 
tiff may  make  such  order,  without  the  acceptance  of  the 
offer  by  the  plaintiff.  Money  or  securities  deposited 
upon  the  acceptance  of  an  offer  pursuant  to  this  section 
shall  be  held  by  the  clerk  or  the  court  until  the  final 
determination  of  the  action,  including  an  appeal.  ( Co. 
Civ.  Proc.  §  3413). 

Neither  this  provision,  nor  anj^  other  in  the  statutory 
provisions,  governing  the  action  to  foreclose  a  me- 
chanics' lien,  prevents  an  offer  of  judgment  under  sec- 
tion 738  of  the  code.  (Kennedy  v.  McKone,  No.  1,  10 
App.  Div.  88).  For  a  discussion  of  section  738,  see 
vol.  I,  p.  768,  et  seq.  The  offer  under  section  3413  must 
contain  the  words  "  in  discharge  of  the  lien,"  in  order 
to  defeat  the  right  of  the  lienor  to  costs  after  the  offer. 
(Burton  v.  RoclueU,  63  Hun,  163). 

Sec.    5.    Judgment. 

By  virtue  of  section  3401,  which  has  been  discussed 
heretofore  in  section  3  of  this  article,  the  judgment  in 
these  actions  is  like  that  in  a  suit  to  foreclose  a  mort- 
gage on  real  property.  That  has  been  discussed  in  sec- 
tion 4  of  article  III  of  this  chapter,  ante. 


1G6  I'UAi'Tin:.  ' 

If  the  owner  lias  agreed  to  dclivor  hills,  notes,  seoui'i- 
ties  or  other  obligations  oi-  any  oilier  sjiecies  of  |H'o|)- 
erty,  in  payment  of  the  (lel>l  upon  wliicli  (lie  lien  is 
based,  the  judi^inent  may  direct  that  such  substitnte  be 
delivered  or  deposited  as  the  court  may  direct,  and  the 
property  att'eeted  by  the  lien  cannot  be  sold,  i>y  viitiu' 
of  such  judninent,  except  in  <lefault  of  the  owner  to  so 
deliver  or  deposit  within  the  time  directed  by  the  court. 
(Co.  Civ.  Proe.  §  3415). 

If  upon  the  sale  of  the  property  under  judjiinent  in  a 
court  of  record  there  is  a  deliciency  of  proceeds  to  pay 
the  i)laintilf's  claim,  judiiinent  may  be  docketed  for  the 
deficiency  aj^ainst  any  pei-son  liable  therefor,  who  shall 
be  adjudged  to  pay  the  same  in  like  manner  and  with 
like  effect  as  in  judgments  for  deficiency  in  foreclosure 
cases.      (Co.  Civ.  Proc.  §  3410). 

The  court  may  adjust  and  determine  the  equities  of 
all  the  parties  to  the  action  and  the  order  of  priority 
of  dilferent  liens,  and  determine  all  issues  raised  by  any 
defense  or  counterclaim  in  the  action.  (Co.  Civ.  Proc. 
§  3403). 

When  a  laborer  or  a  material  man  shall  perform  labor 
or  furnish  materials  for  an  improvement  of  real  prop- 
erty for  which  he  is  entitled  to  a  mechanic's  lien,  the 
amount  due  to  him  shall  be  paid  out  of  the  proceeds  of 
the  sale  of  such  jiroperty  under  any  judgment  rendered 
pursuant  to  this  title,  in  the  order  of  priority  of  his 
lien,  before  any  part  of  stich  proceeds  is  paid  to  a  con- 
tractor or  subcontractor.  If  several  notices  of  lien  are 
filed  for  the  same  claim,  as  where  the  contractor  has 
filed  a  notice  of  lien  for  the  services  of  his  workmen,  and 
the  workmen  have  also  filed  notices  of  lien,  the  judg- 
ment shall  jirovide  for  but  one  payment  of  the  claim 
which  shall  be  paid  to  the  parties  entitled  thereto  in  the 
oi'der  of  ])riority.  Payment  voluntai'ily  made  upon 
any  claim  filed  as  a  lien  shall  not  i<iii)aii'  oi-  diminish 
the  lien  of  any  person  except  the  person  to  whom  the 
payment  was  made.      (Co.  Civ.  Proc.  §  3414). 

If  the  lienor  shall  fail,  for  any  reason,  to  establish  a 
valid  lien  in  an  action,  treated  of  in  this  article,  he  may 
recover  a  judgment  therein  for  such  sums  as  are  due 


FORECLOSURE   OF    MORTGAGES   AND    LIENS.  167 

him,  or  which  he  might  lecover  iu  au  actiou  on  a  con- 
tract against  any  party  to  the  action.  (Co.  Civ.  Proc. 
§  3412).  The  power  given  by  tliis  section  to  award  a 
judgment  in  personam  where  the  ckiim  for  the  judg- 
ment in  rem  fails,  is,  of  course,  peculiar  to  this  action; 
no  such  power  exists  in  an  action  to  foreclose  a  mort- 
gage on  real  property.  (See  Dudley  v.  Confjrcyation 
of  aS7.  Francis,  138  N.  Y.  451).  Except  for  the  provi- 
sions of  this  section,  a  court  of  equity  would  have  no 
power  to  award  any  such  personal  judgment.  {JJcanc 
Steam  Pump  Co.  v.  Clark,  84  App.  Div.  450,  at  p.  453, 
and  cases  there  cited).  To  justify  such  a  judgment, 
however,  the  complaint  or  answer  (as  the  case  may  be) 
setting  forth  the  claim  of  the  lieu  must  show  the  exist- 
ence of  a  contract  with  the  defendant  against  whom  the 
personal  judgment  (on  failure  of  the  claim  to  lien)  is 
asked,  and  furthermore  must  demand  such  personal 
judgment.  (Kane  v.  Hutkoff,  81  App.  Div.  105;  Deane 
Steam  Pump  Co.  V.  Clark,  supra).  Also,  where  a  de- 
fendant claims  such  relief  against  a  co-defendant,  the 
answer  must  be  served  on  such  co-defendant.  (Mason 
Supplies  Co.  V.  Jones,  58  App.  Div.  231;  affd.  without 
op.,  172  N.  Y.  598).  In  order  to  bring  the  provisions 
of  section  3412  into  operation,  not  only  must  there  be 
privity  of  contract  between  the  party  claiming  the  per- 
sonal judgment  and  the  person  against  whom  it  is 
claimed  (Alijea  v.  Cits.  Sac.  Bk.,  12  App.  Div.  574;  affd. 
on  op.  below,  162  N.  Y.  597),  but  also,  it  would  seem, 
there  must  have  been  filed  a  lien.  (Niissherger  v.  Was- 
serman,  40  Misc.  120;  Deane  Steam  Pump  Co.  V.  Clark, 
87  App.  Div.  459).  The  fact  that  the  lien  is  invalid  or 
void  does  not  prevent  the  personal  judgment  if  the  facts 
re(]uisite  for  such  judgment  are  duly  pleaded.  (Haw- 
kins V.  Mapes-Reeve  Cons.  Co.,  82  App.  Div.  72;  Ter- 
wilUger  v.  Wheeler,  81  App.  Div.  460).  The  Haickins 
case  was  decided  by  the  appellate  division  in  the  first 
department,  and  the  TerwiUiger  case  by  the  fourth 
appellate  division.  The  second  appellate  division  seems 
to  have  reached  a  conclusion  somewhat  at  variance  with 
that  in  the  Han-kins  and  Tenrilliger  cases,  in  Mowbrai/ 
V.  Levy,  (85  App.  Div.  68),  where  it  was  held  that  the 


Kl.s  ruAtricE. 

"failure  to  establish  (lie  lien,"  jn-ovided  I'oi-  in  scclioii 
3411',  means  sncli  failnre  by  reason  of  a  teclmicalilv  or 
infornialitv  only,  and  not  by  reason  of  snbstantive 
defects. 

lu  the  UdirLins  ease  will  be  found  an  elaborate  dis- 
cussion (d"  the  i»rocedure  necessary  to  obtain  a  jui*y 
trial  where  the  lien  is  ludd  to  be  invalid  and  the  cause 
proceeds  under  a  demand  for  a  personal  jnd<;meut. 

Sec.    6.    Costs  and  disbursements. 

If  an  action  is  brought  to  enforce  a  mechanics'  lien 
a<»aiust  real  property  in  a  court  of  record,  the  costs  and 
disltursements  shall  I'est  in  the  discretion  of  the  coni't, 
and  may  be  a\vai<led  to  the  prevailinj*  i)arty.  The  judj;- 
ment  rendered  in  such  an  action  sliall  include  the 
amount  of  such  costs  and  specify  to  whom  and  by  whom 
the  costs  are  to  be  paid.      (Co.  Civ.  Proc.  §  o4Ll  j. 

B}'  virtue  of  this  provision,  the  whole  matter  is  in 
the  discretion  of  the  court;  the  other  provisions  of  the 
code,  such  as  sections  3228  and  3221)  do  not  apply. 
{Favillc  V.  Hadcocli,  39  ^lisc.  397).  Of  course,  allow- 
ances in  addition  to  costs  can  be  j»ranted  in  such  actions. 
[Eorgun  v.  McKenzie,  IT  N.  Y.  Supp.  174). 

Sec.    7.    Discharge  of  lien. 

A  mechanic's  lien  on  real  property  may  be  vacated 
and  cancelled  by  an  order  of  a  court  of  record.  Before 
such  oi'der  shall  be  granted  a  notice  shall  be  served  upon 
the  lienor,  either  personally  or  by  leaving-  it  at  his  last- 
known  place  of  residence,  with  a  person  of  suitable  age, 
with  directions  to  deliver  it  to  the  lienor.  Such  notice 
shall  require  the  lienor  to  commence  an  action  to  en- 
force the  lien,  within  a  time  specified  in  the  notice,  not 
less  than  thirty  days  from  the  time  of  service,  or  show 
cause  at  a  special  term  of  a  court  of  record,  or  at  a 
county  court,  in  a  county  in  which  the  property  is 
situated,  at  a  time  and  place  specified  therein,  why  the 
notice  of  lien  filed  should  not  be  vacated  and  cancelled 
of  record.  Proof  of  such  service  and  that  the  lienor  has 
not  commenced  the  action  to  foreclose  such  lien,  as 
directed  in  the  notice,  shall  be  made  by  affidavit,  at  the 


FORECLOSURE    OF    MORTGAGES   AND    LIENS.  169 

time   of   applying   for   such    order.       (Co.    Civ.    Proc. 
§3417). 

Whetlier  the  action  shall  be  dismissed  on  the  return 
of  such  notice  is  discretionary.  [Matter  of  Poole,  14 
N.  Y.  Supp.  790;  Jackson  Co.  v.  Haven,  87  App.  Div. 
236).  The  service  of  a  summons  is  a  sufficient  '^  com- 
mencement of  an  action.''  {Matter  of  Cattaherry  v. 
Knox,  17  App.  Div.  372;  affd.  on  op.  beloAV,  154  N.  Y. 
747).  If  the  action  is  brought,  and  the  plaintiff  un- 
reasonably neglects  to  proceed,  a  defendant  has  a 
remedy  under  section  1674  of  the  code.  {Townsend  V. 
Work,  79  Hun,  381). 

Sec.    8.    Actions  in  conrts  not  of  record. 

If  an  action  to  enforce  a  mechanic's  lien  against  real 
property  is  brought  in  a  court  not  of  record,  it  shall 
be  commenced  by  the  personal  service  upon  the  owner, 
anywhere  within  the  state,  of  a  summons  and  complaint 
verified  in  the  same  manner  as  a  complaint  in  an  action 
in  a  court  of  record.  The  complaint  must  set  forth 
substantially^  the  facts  contained  in  the  notice  of  lien, 
and  the  substance  of  the  agreement  under  which  the 
labor  was  performed  or  the  materials  were  furnished. 
The  form  and  contents  of  the  summons  shall  be  the 
same  as  provided  bj  this  code  for  the  commencement  of 
an  action  upon  a  contract  in  such  court.  The  summons 
must  be  returnable  not  less  than' twelve  nor  more  than 
twenty  days  after  the  date  of  the  summons,  or,  if  ser- 
vice is  made  by  publication,  after  the  day  of  the  last 
publication  of  the  summons.  Service  must  be  made  at 
least  eight  days  before  the  return  day.  ( Co.  Civ.  Proc. 
§  3404). 

The  action,  here  provided  for,  is  very  different  from 
that  given  in  courts  of  record ;  it  is  not  a  suit  in  equity. 
(Kotzen  v.  Nathanson,  33  Misc.  299;  Eadie  v.  Waldron, 
64  App.  Div.  424;  FarlUe  v.  Hadcoek,  39  Misc.  397). 
There  has  been  considerable  doubt  whether  the  muni- 
cipal court  of  the  city  of  New  York  had  jurisdiction  of 
actions  of  this  kind,  but,  after  several  decisions  holding 
that  it  bad  not  (McGonologue  v.  McCaffrey,  29  Misc. 


170  I'KACTici:. 

130;  Sniilli  v.  Sil.^h<\  oli  A])]).  Div.  402),  it  scoins  to  be 
settled  that  it  luis  sucli  Jurisdiction.  {  Kot.zcii  V. 
\ (illiaiisnii ,  .sii/nti:  I'adic  \.  Wiildroii.  siipni).  The 
discussion  in  these  cases  of  tiie  natui-e  of  the  action  in 
courts  not  of  recor<l  as  provich'd  h_v  statute,  and  as  to 
the  constitutional  limitation  on  courts  of  le<;ishitive 
creation,  is  instructive  in  deterniiuiug  the  jurisdiction 
of  such  courts  licuerally. 

If  personal  service  of  the  sununons  cannot  be  made 
u])ou  a  (h'fen(hnit  in  an  action  in  a  court  not  of  record, 
by  reason  of  his  absence  from  the  state,  or  his  conceal- 
ment therein,  such  service  may  be  made  by  leaving  a 
coi>y  thereof  at  his  last  i)lace  of  residence  and  by  pub- 
lishing a  copy  of  the  summons  once  in  each  of  three 
successive  weeks  in  a  newspaper  in  the  city  or  county 
where  the  property  is  situated.     (Co.  Civ.  Proc.  §  340')). 

At  the  time  and  i>lace  specified  in  the  summons  for 
the  return  thereof,  in  a  court  not  of  record,  issue  must 
be  joined,  if  Ixsth  parties  appear,  by  tlie  defendant  filing 
with  the  justice  a  verified  answer,  containing  a  general 
denial  of  each  allegation  of  the  complaint,  or  a  specific 
denial  of  one  or  more  material  allegati<ms  thereof;  or 
any  other  matter  constituting  a  defense  to  the  lien  or 
to  the  claim  upon  which  it  is  founded.  If  the  defend- 
ant fail  to  appear  on  the  return-day,  on  proof  by  affi- 
davit of  the  service  of  the  summons  and  complaint, 
judgment  may  be  rendered  for  the  amount  claimed  with 
costs.      (Co.  Civ.  Proc.  §  3400). 

If  issue  is  joined  in  such  action  in  a  court  not  of 
record,  it  must  be  tried  in  the  same  manner  as  other 
issues  in  such  court,  and  judgment  entered  thereon, 
which  shall  be  enforced,  if  for  the  ])laintiff,  in  the  man- 
ner provided  for  in  section  3408  of  the  code.  If  for  the 
defendant,  in  the  same  manner  as  in  an  action  on  con- 
tract in  such  court.      (Co,  Civ.  Proc.  §  3407). 

Executions  may  be  issued  upon  a  judgment  obtained 
in  an  action  to  enforce  a  mechanic's  lien  against  real 
property  in  a  court  not  of  record,  which  shall  direct 
the  officer  to  sell  the  title  and  interest  of  the  owner  in 
the  premises,  upon  which  the  lien  set  forth  in  the  com- 


FORECLOSrUK    (JF    MOUTGAGES   AND    LIENS.  171 

plaint  existed  at  the  time  ol'  tiliug  tlie  notiee  oi;  lien. 
(Co.  Civ.  Proe.  §  3408). 

An  appeal  may  be  taken  from  such  judgnient  ren- 
dered in  a  court  not  of  record,  according  to  the  provi- 
sions of  the  code  regulating  appeals  from  judgments  in 
actions  on  contract  in  such  courts.  (Co.  Civ.  Proc. 
§  3409). 

^^  hen  a  judgnient  is  rendered  in  a  court  not  of  record, 
the  justice  or  judge  of  the  court  in  which  it  is  tried,  or 
other  person  authorized  to  furnish  transcripts  of  judg- 
ments therein,  shall  furnish  the  successful  part^^  a 
tianscript  thereof,  which  he  may  file  with  the  clerk  of 
the  county  with  whom  the  notice  of  lien  is  filed.  The 
filing  of  such  a  transcript  has  the  same  effect  as  the 
filing  of  a  transcript  of  any  other  judgment  rendered 
in  such  courts.      ( Co.  Civ.  Proc.  §  3410 )  T 

In  such  action  in  a  court  not  of  record,  the  costs  shall 
be  the  same  as  allowed  in  civil  actions  in  such  court. 
The  expenses  incurred  in  serving  the  summons  by  pub- 
lication may  be  added  to  the  amount  of  costs  now  al- 
lowed in  this  court.      (Co.  Civ.  Proc.  §  3411). 

Liens  under  a  contract  for  a  public  improvement  are 
enforceable  against  the  funds  of  the  municipality  for 
which  the  municipal  improvement  is  constructed,  and 
the  contractor  and  subcontractor,  in  the  same  manner 
as  mechanics'  liens  on  real  property.  (Co.  Civ.  Proc. 
§  3400).  There  are  especial  code  provisions  on  that 
subject,  as  well  as  on  liens  on  vessels.  (Co.  Civ.  Proc. 
§§  3419-3441).  Such  matters  will  not  be  discussed  in 
this  work.  The  subject  of  the  foreclosure  of  mechanics' 
liens  on  real  property  has  been  discussed,  because  of 
its  similiarity  to  foreclosure  of  real  estate  mortgages 
and  because  of  their  frequent  occurrence. 


CHAPTER  LIII. 

OTHER  ACTIONS  RELATING  TO  REAL  PROPERTY. 


ARTICLE  I Action  to  determine  conflicting  claims  to  real  property. 

ARTICLE  II  .  .  .Action  for  wages. 

ARTICLE  III.. Action  for  a  nuisance. 

ARTICLE  IV... Action  against  persons   holding  over. 

ARTICLE  V. ...Action  by  joint  tenant  to  recover  his  share  of  rents 

and  profits. 
ARTICLE  VI . .  .  Action  for  timber  cut  by  trespasser. 
ARTICLE  VII.. Action  against  forcible  ejectors. 


ARTICLE  I. 

ACTION     TO     DETERMINE     CONFLICTING     CLAIMS    TO     REAL 

PROPERTY. 
SECTION. 

1.  History  and  nature  of  the  proceeding. 

2.  Who  may  be  plaintiffs. 

3.  Against  whom  action  may  be  brought. 

4.  Pleadings. 

5.  Proceedings  before  judgment. 

6.  Judgment. 

7.  New  trial. 

8.  Eifect  of  judgment. 

9.  Action  against  claimant  of  dower. 

Sec.    1.   History  and  nature  of  the  proceeding. 

At  common  law  there  was  no  way  in  which  a  title 
could  be  quieted  where  an  outstanding  claim  existed 
against  it,  unless  the  person  setting  up  such  a  claim, 
commenced  proceedings  to  enforce  it.  [Lewis  v.  Howe, 
174  N.  Y.  340,  343).  In  order  to  obviate  the  incon- 
venience necessarily  resulting  from  the  uncertainty  in 
nmny  instances  attending  titles,  the  legislature  created 
a  new  remedy,  placing  it  in  the  power  of  the  person  in 
possession  of  land  to  quiet  his  title  to  it  forever.      By 

(173) 


174  I'KACTU'H. 

the  ivvised  statutes,  inticccdiiiiis  were  hoiiiiu  by  a  iiotifp 
served  liy  the  i>ers<)ii  in  j»«)ssessioii  u|>(Hi  liiin  who,  il  was 
aUeji'ed,  unjustly  chiiiiied  liile.  The  cddc  of  prctcedure 
|)i'<)vi(hMl  thai  the  same  i-elief  niijiht  be  obtained  l»y 
action.  (Co.  I'l-oc.  §  441)).  Xotwithstandin.u  this  [H'o- 
visiou  of  the  code  of  procedure,  il  was  hehl  that  liie  pro- 
visions of  the  revised  statutes  were  ncM  al»olished,  aiul 
that  proceedings  to  coinju'l  the  <h'terininat ion  of  chiinis 
to  real  property  nii<iht  be  prosecuted  in  the  way  pre- 
scribed by  the  revised  statutes.  {  liunilidm  v.  Ondcr- 
(loiik,  41  X.  Y.  425).  The  proceediuj^  under  the  revised 
statutes  was  a  special  proceeding-.  By  the  code  of  civil 
j)i'ocedure,  the  provisions  of  the  revised  statutes,  and 
also  the  provisions  of  the  code  of  procedui'e  upon  this 
subject  were  abolished;  and  the  only  mode  of  deter- 
mininii  claims  to  real  ]u-o])erty  is  l)y  an  action  to  be 
brouj;ht  as  prescribed  by  the  code  of  civil  proce<lure. 
The  scope  of  the  action  was  materially  extended  in 
1891  by  amendments  (chai).  21(1,  laws  of  1801)  to  the 
sections  of  the  code  <^<)verniui;  it,  and  again  by  a  further 
amendmeut  in  11)04  (chapter  526  of  the  laws  of  1904), 
as  will  be  pointed  out  hereafter. 

The  action  may  be  brought  only  in  the  supreme  court; 
the  county  court  has  no  jurisdiction  of  these  actions. 
The  action  is  triable  in  the  county  where  the  property 
is  situated.  (Vol.  II,  p.  127).  The  action  is  to  be 
brought,  and  the  same  proceedings  are  had  in  it  as  in 
any  other  civil  action.  If  the  defendant  is  a  non- 
resident, the  summons  is  to  be  served  upon  him  in  the 
manner  prescribed  for  service  upon  non-residents. 
Notice  of  the  pen<lency  of  the  action  should  be  tiled  in 
all  cases  (vol.  I,  p.  237)  ;  as  the  judgment  is  a  bar  to 
any  claim  accruing  after  the  filing  of  the  notice  of  the 
p(Midency  of  action.  (To.  Civ.  Proc.  §  1646).  The 
provisions  of  the  code  of  civil  procedure,  differ  some- 
what from  those  of  the  revised  statutes  by  compelling 
the  defendant  to  litigate  his  claim  to  the  ])roperty,  if  he 
has  any,  in  the  action  brought  to  determine  contlicting 
claims  in  the  same  way  as  though  he  had  brought  an 
action  of  ejectment;  and  making  the  judgment  when 
rendered,  a  complete  bar  upon   the  question   of  title. 


OTHER  ACTIONS  RELATING  TO  REAL  PROPERTY.   175 

(t'hroop's  Cotle,  prelimiiiary  note  to  article  V,  chapter 
XIV). 

Sec.    2.    'Who  may  be  plaintiffs. 

Where  am-  person  has  been,  or  he  and  those  whose 
estate  lie  has,  have  been,  for  one  year  in  possession  of 
real  property,  or  of  any  undivided  interest  therein, 
claiming  it  in  fee  or  for  life,  or  for  a  term  of  years  not 
less  than  ten,  he  may  be  plaintiff  in  this  proceeding. 
(Co.  Civ.  Proc.  §  1G38;  see,  also,  vol.  I,  p.  178).  A 
corporation,  an  unincorporated  association,  or  the  re- 
ceiver or  successor  of  any  such  corporation  or  associa- 
tion may  maintain  the  action.  (Co.  Civ.  Proc.  §  1650). 
The  court  under  this  statute  can  take  cognizance  of 
claims  to  three  estates  only,  namely,  estates  in  fee  or 
for  life,  or  for  a  term  of  years  not  less  than  ten.  It  is 
not  intended  that  all  controversies  with  reference  to 
lands  should  be  terminated  thereby.  (Barnard  v. 
t^inims^  42  Barb.  301).  Such  an  action  is  not  main- 
tainable for  the  purpose  of  procuring  an  adjudication 
that  a  plaintiff  has  easements  or  rights  of  that  char- 
acter in  the  lands  of  another.  (Cons.  Ice  Co.  v.  Mayor, 
etc.,  of  N.  Y.,  166  N.  Y.  92,  100).  While  the  class  of 
claims  on  the  part  of  defendants,  that  may  be  adjudi- 
cated upon  in  the  action,  was  nuiterially  broadened  by 
the  amendments  effected  by  chapter  210  of  the  laws  of 
1891,  so  as  to  include  easements  and  liens  or  incum- 
brances of  the  amount  or  value  of  not  less  than  two 
hundred  and  fifty  dollars,  the  statute  was  left  un- 
changed in  the  requirement  that  the  plaintiff's  alleged 
estate  (to  which  such  claim  was  made)  must  be  one  in 
fee  or  for  life  or  for  a  term  of  years  not  less  than  ten. 

The  general  renovation  in  1891  of  the  sections  of  the 
code  governing  the  action  under  consideration,  did 
materially  change,  however,  certain  requirements  of 
section  1638  as  to  the  plaintiff's  possession;  prior  to 
the  amendments  of  1891,  the  plaintiff  could  not  main- 
tain the  action  unless  he  had  been  for  three  years  in 
the  actual  possession  of  the  property;  the  amendment 
of  1891  struck  out  the  word  "  actual,"  and  changed  the 
time  requirement  to  one  year.     Prior  to  the  amendment, 


176  ruACTicE. 

it  was  held  that  a  constructive  possession  Ity  the  plain- 
titf  was  not  sufficient,  as  the  word  "  actual  "  evinced 
a  lejiislative  intent  to  the  conti;n-,v  {Jioijlstoii  v. 
l\7/((7(/-,  01  N.  V.  ."iJl;  Chrchiinl  v.  Cnnrford,  7  Ilun, 
tJlG;  ]'aii  \\'(if/cncii  v.  liot.sfonl.  \'.'>  Wk.  l)i«;.  o.Sl);  the 
elimination  of  that  word,  by  the  amendment  in  ques- 
tion, seems  to  show  that  constructive  possession,  as  by 
a  tenant,  is  sufficient  {King  v.  Toicnshciid,  78  Hun, 
380;  Cluson  v.  i^tcicarl,  23  Misc.  177);  if  the  plaintilT 
has  the  le<;al  title,  jxjssession  is  presumed  to  follow  it, 
so,  where  the  land  is  unoccupied,  an  allegation  and 
proof  that  the  plaintiff  has  title  is  sufTticient.  {Whit- 
man V.  Citij  of  Xrir  YorL-,  85App.  Div.  4G8).  The  pur- 
pose of  the  limitation  of  one  year  in  possession,  how- 
ever, was  to  prevent  suits  under  the  statute  by  transient 
occupants  who  might  go  into  possession  for  the  very 
l)ur[)ose  of  bringing  the  action,  and,  therefore,  there 
must  always  be  allegation  and  proof  of  such  possession. 
( Leiris  v.  Hoirc,  174  N.  Y.  340).  Such  possession  must 
have  been  immediately  preceding  the  commencement  of 
the  action.  {Boyhton  v.  W'lirclcr,  supra).  If  he  has 
been  in  possession  the  requisite  time  under  a  claim  of 
tile,  although  such  possession  was  wrongful,  it  is  suffi- 
cient to  enable  him  to  maintain  the  action,  {i^chrocder 
v.  (hinirjj,  10  Hun,  413;  affd.,  73  N.  Y.  430).  Plain- 
tilT's  possession  under  a  verbal  agreement  of  purchase, 
which  agreement  has  been  duly  performed,  for  the  re- 
quisite length  of  time,  is  sufficient  under  section  1G38. 
{lirotni  V.  (Jruhh,  15G  N.  Y.  447).  Of  course,  it  is  to  be 
noted  that  section  1638  does  not  require  the  plaintiff 
himself  to  have  been  in  possession  for  the  year;  if  the 
person  "whose  estate  he  has''  and  the  plaintiff,  to- 
gether, have  had  the  year's  possession,  the  statute 
allows  him  to  bring  the  action.  ( Dirfciidorf  v.  Dicfen- 
dorf,  132  N.  Y.  100).  \Vhere  the  plaint ilf  shows  a  pos- 
session, its  continuance  may  be  inferred.  (Stachliousc 
v.  Slolrnlnir,  22  App.  Div.  312). 

An(ither  change  in  the  re(|uirement  of  section  1G38 
as  to  the  plaintiff's  interest,  was  effected  I)y  tiie  amend- 
ment of  1891,  in  allowing  a  plaintiff  who  liad  l)een  in 


OTHEU    ACTIONS    UIOLATIXG    TO    REAL    rUOl'KUTY.       177 

possession  of  an  undivided  interest  in  real  property  (a.s 
distius^uished  from  the  wliole  property)  to  bring  tlie 
action. 

Sec.    3.    Against    Ttrhoni    action    may    be    brought. 

The  action  may  be  brought  against  any  person  to 
compel  the  determination  of  any  chiini  adverse  to  that 
of  the  phiiutitf,  wliicli  defenchmt  malces,  or  which  it 
appears  from  the  public  records  the  defendant  might 
make,  to  any  estate  in  that  jiroperty,  in  fee,  or  for  life, 
or  for  a  term  of  years  not  less  than  ten,  in  possession, 
reversion  or  remainder,  including  any  claim  in  the 
nature  of  an  easement  therein,  whether  appurtenant  to 
any  other  estate  or  lands  or  not,  and  also  including  any 
lien  or  incundn-ance  u])on  said  property,  of  the  amount 
of  not  less  than  two  hundred  and  fifty  dollars.  But 
this  section  does  not  apply  to  a  claim  for  dower.  (Co. 
Civ.  Proc.  §  1038 ) . 

The  amendment  of  1891,  above  referred  to,  has 
wrought  numy  more  changes  as  to  the  parties  defendant 
in  the  action  and  as  to  the  claims  of  such  defendants 
that  may  be  litigated  and  determined,  than  in  respect 
of  the  requirements  as  to  the  plaintitf,  noticed  hereto- 
fore. Prior  to  that  amendment,  section  1G38,  by  way 
of  exception,  did  not  allow  the  action  to  be  brought 
against  ""  a  person  who  was,  when  the  action  was  com- 
menced, an  infant,  an  idiot,  a  lunatic,  an  habitual 
drunkard,  or  imprisoned  on  a  criminal  charge,  or  in 
execution  upon  conviction  of  a  criminal  offense;"  the 
amendment  cut  out  this  exception ;  so  that  now  an 
action  of  the  character  we  are  considering  may  be  main- 
tained against  such  person,  in  the  same  way  as  any  other 
action.  The  amendment  of  1891  did,  however,  distin- 
guish such  persons  from  other  defendants  by  giving  them 
a  new  trial  as  a  matter  of  right,  as  we  shall  see  hereafter. 
That  amendment  also  allowed  the  determination  in  the 
action  of  any  claim  on  the  part  of  a  defendant  in  the 
nature  of  an  easement,  either  appurtenant  or  in  gross, 
or  in  the  nature  of  a  lien  or  incumbrance  of  the  amount 
of  not  less  than  two  hundred  and  fifty  dollars;  such 
12 


178  i'KA<  rici;. 

claims  wow  uni  (Ictcniiiiialdc  in  llic  action  prioi-  to  llic 
anicndnicnt. 

Tiioi'  lo  ilic  cnachiicnt  (»!'  cliaplci-  .~i2(;  ol"  llic  laws  of 
1!>(I4,  the  action  «-oul(l  onlv  he  hi-on.ulil  to  compel  the 
<l('tcnninal  ion  of  a  claim  which  the  defendant  actnallv 
made;  liv  that  i)r()vision,  however,  the  \voi-<ls  "  oi-  which 
it  ai)peai's  from  the  puhlic  rec(n-(ls  the  defendant  mijihl 
make,"  w'cre  inserted,  thns  making  it  i»ossil»le  ti>  sue  a 
defendant  who  never  has  made  any  claim  l)Ut  w  ho  mij^ht 
do  so  accordinii  to  the  ])nhlic  i-ecords. 

The  woi'ds  "  adverse  to  tlie  i)laint  ill/"  in  section  1(138, 
do  not  (jnalifv  "  liens  or  incumbrances,"  so  that  snch 
liens  or  incumbrances  need  not  be  claimed  adversely  to 
the  plaintiff,  in  ordei-  to  be  determinable.  {  Liriiifj.sion 
v.  Moore,  15  App.  Div.  15,  L\5;  appeal  dismissed,  161 
N.  Y.  ()(>!' ).  The  two  hundred  and  fifty  dollar  limita- 
tion applies  only  to  liens  or  incumbrances.  {Loomis 
V.  ^emjjer,  38  Misc.  567,  569). 

The  action  may  be  bi'oui;ht  against  a  corporation,  an 
unincorporated  association,  or  the  receiver  or  successor 
of  any  such  corporation  or  association.  ( Co.  Civ.  Proc. 
§  1650).  It  may  be  brounht  against  one  who  claims 
under  a  deed  which  is  allej'ed  to  be  void  for  champert}'. 
(PearcG  v.  Moore,  114  N.  Y.  256).  It  may  also  be 
brouiiht  against  one  who  makes  an  adverse  claim  under 
a  tax  title.  {Donahue  v.  O'Conor,  45  N.  Y".  Super.  Ct. 
Rep.  278). 

Sec.    4.    Pleadings. 

The  complaint  in  such  an  action  must  set  forth  facts 
showing : 

1.  The  plaintiff's  rij^ht  to  the  real  property;  whether 
his  estate  therein  is  in  fee  or  for  life,  or  for  a  term  of 
years  not  less  than  ten;  and  whether  he  holds  it  as  heir, 
devisee  or  purchaser,  with  the  source  from,  or  means  by, 
which  his  title  immediately  accrued  to  him. 

2.  That  the  ])ro]K'rty,  at  the  commencement  of  the 
action  Avas,  and,  for  the  one  year  next  precedinc:,  has 
been  in  his  possession,  or  in  the  possession  of  himself 
and  those  from  whom  he  derives  his  title,  either  as  sole 


OTHER  ACTIONS  RELATING  TO  REAL  PROPERTY.   179 

teuaut  or  as  joint  touaiit,  or  k'uant  iu  eonimoii  with 
others. 

3.  That  the  defendant  unjustly  claims,  or  that  it 
appears  from  tlie  public  records  that  the  defendant 
mij;ht  unjustly  claim,  an  estate  or  interest  or  easement 
therein,  or  a  lien  or  incund)rance  thereupon  of  the  char- 
acter specitied  in  section  1038. 

The  complaint  must  describe  the  property  as  pre- 
scribed in  section  1511  of  the  code.  The  demand  for 
judj>nieut  may  be  to  the  etfect  that  the  defendant  and 
every  person  claiming  under  him  be  barred  from  all 
claim  to  an  estate  in  the  property-  described  in  the  com- 
plaint, or  from  all  claim  to  an  interest  or  easement 
therein,  or  a  lien  or  incund)rance  thereupon,  of  the 
character  specitied  in  section  1(538,  or  it  may  combine 
two  or  more  of  said  demands  with  other  demands  for 
appropriate  relief.      (Co.  Civ.  Proc.  §  1639). 

See,  also,  chapter  XLIX,  article  III,  §  1,  supra, 
where  section  1511  is  quoted. 

A  complaint  which  alleges  the  seizin  in  fee  of  the 
plaintiff  and  actual  possession  for  the  requisite  time,  is 
good  under  this  section.  (Pearce  v.  Moore,  114  N.  Y. 
256).  Possession  in  plaintiff  under  a  claim  of  title  for 
the  length  of  time  fixed  by  the  statute  is  sufficient  to 
require  the  defendant  to  show  his  own  title.  {^StacK-- 
house  V.  Sfotenhur,  22  App.  Div.  312).  An  allegation 
that  the  defendant  "  unjustly  claims  an  estate  or  in- 
terest in  the  premises,  to  wit,  the  adverse  claim  that  he 
is  seized  of  said  premises  in  fee,''  is  sufficient  under 
subdivision  3  of  section  1639.  {King  v.  Toionshend, 
78  Hun,  380;  Phillips  v.  R.,  W.  &  0.  R.  R.  Co.,  30  N.  Y. 
St.  Rep.  41;  s.  c,  9  N.  Y.  Supp.  799). 

If  the  defendant,  in  his  answer,  puts  in  issue  the  mat- 
ters specified  in  subdivision  2  of  section  1639,  and  suc- 
ceeds upon  that  defense,  final  judgment  must  be  ren- 
dered iu  his  favor,  dismissing  the  complaint,  and  award- 
ing to  him  costs  against  the  plaintiff.  (Co.  Civ.  Proc. 
§  1640). 

Where  possession  is  denied,  and  the  plaintiff  shows 
only  a  possession  under  an  unfounded  claim  of  title, 


ISO  I'll  AC  TIC  E. 

ev!»lt*ii(<*  of  the  actual  possession  and  otcupatiou  In  de- 
fendant prior  to  the  entrv  hy  ihe  phiiutiH"  is  a  sutticieul 
defense.  (  i'ord  \.  Ji(  Imoiil ,  (»!>  X.  V.  507).  It  was  held 
in  /laniard  v.  Siniiii.s  (41'  liai'li.  o04  ) ,  that  the  defendant 
could  not  appear  and  disclaim,  and  have  judgment  of 
discontinuance  in  his  favt)r.  The  reason  given  was 
that,  if  the  claim  or  interest  (d"  the  defendant  is  of  that 
kind  of  which  the  c(uirt  could  not  take  judicial  cog- 
nizance, he  lost  iiothinu,  and  could  not  he  i)rejudiced  by 
any  default  which  might  he  taken  against  him  for  his 
failure  to  appear  upon  the  notice.  This  case,  however, 
was  commenced  hy  a  notice  under  the  revised  statutes. 
In  a  later  case  of  Jhiris  v.  Rrad  ( (15  N.  Y.  5r>()|,  which 
was  brought  by  action  under  section  441)  of  the  c(»de  of 
procedure,  and  not  by  notice,  it  was  held  that  if  the 
defendants  made  no  claim,  it  was  theii-  duty  to  a]>pear 
and  disclaim  any  interest  in  the  property,  in  order  to 
save  themselves  from  liability;  and  the  court  further 
held  that  when  this  was  done,  the  burden  of  establish- 
ing the  fact  that  a  claim  was  made  by  the  defendant  is 
upon  the  plaintiff;  and  in  the  absence  of  proof  of  that 
fact,  a  judgment  against  the  disclaiming  defendant  was 
error.  It  would  seem  that  wherever  the  defendant 
claims  any  title  to  the  property,  he  should  appear  and 
put  in  issue  the  question  of  his  claim,  and  if  he  fails 
to  do  so,  a  judgment  against  him,  based,  as  it  must  be, 
upon  the  allegations  of  the  complaint,  would  be  con- 
clusive that  he  made  a  claim,  but  that  such  claim  was 
not  valid  against  the  plaiutitf.  (See  Mcrrltt  V.  t^inith, 
50  App.  Div.  349). 

The  defendant  may,  in  his  answer,  either  with  or 
without  the  defense  specified  in  section  1040,  set  forth 
facts,  showing  that  he  has  an  estate  in  the  property  or 
any  part  thereof,  adverse  to  the  plaintiff,  in  fee,  or  for 
life,  or  for  a  term  of  years  not  less  than  ten,  in  posses- 
sion, reversion,  or  remainder,  as  in  a  complaint  for  the 
same  cause  of  action ;  or  the  defendant  may  set  forth 
facts  showing  that  he  has  an  interest  or  an  easement  in, 
or  a  lien  or  incumbrance  upon,  said  pi-operty;  and  there- 
upon he  may  demand  that  the  complaint  be  dismissed, 
or  any  judgment  to  which  he  would  be  entitled  in  an 


OTHER    ACTIONS    KHI.ATINC;    TO    JJEAL    rUOl'EKTY.       181 

action  brought  by  him  to  recover  that  estate  in  said 
property,  or  to  enforce  in  any  manner  the  interest  or 
easement  therein,  or  the  lien  or  incumbrance  thereupon 
which  he  asserts;  or  he  may  c(»mbine  an^'  two  or  more 
of  said  demands.  (Co.  Civ.  I'roc.  §  1641).  If  the  de- 
fendant lias  a  title,  and  fails  to  set  it  up,  a  judgment 
against  him  is  a  bar  to  it.  {Malfoiiitrr  v.  Dimmick,  4 
Barb.  566;  Co.  Ci\i.  Proc.  §§  1645,  1646).  The  defend- 
ant may,  in  addition  to  setting  up  the  special  defenses 
mentioned  in  sections  1640  and  1641  of  the  code  of  civil 
procedure,  set  up  any  other  defenses  which  would  de- 
feat the  right  to  the  relief  asked  for  in  the  complaint, 
{Ford  V.  Belmont,  35  N.  Y.  Super.  Ct.  Rep.  135). 

Sec.    5.    Proceedings  before  judgment. 

If  the  defendant  makes  default  in  appearing,  or  in 
answering,  judgment  can  only  be  taken  upon  applica- 
tion to  the  court.  The  same  steps  must  be  taken  with 
regard  to  notice  in  this  action  as  in  other  actions;  as  to 
which  see  vol.  II,  p.  TOT,  ct  scq. 

Where  an  issue  of  fact  is  joined  in  an  action  brought 
as  prescril)ed  in  this  article,  unless  the  defendant  merely 
demands  that  the  complaint  be  dismissed,  if  the  defend- 
ant claim  an  estate  in  said  property,  the  subsequent 
proceedings,  including  the  trial,  judgment  and  execu- 
tion, are  the  same  as  if  it  was  an  action  of  ejectment, 
except  as  otherwise  expressly  prescribed  in  the  title  of 
the  code  governing  actions  relating  to  real  property 
(title  I  of  chap.  XIV)  ;  if  the  defendant  claims  an  in- 
terest or  easement  in,  or  a  lien  or  incundu'ance  upon, 
said  property,  the  subsecpient  proceedings  are  the  same 
as  if  it  was  an  action  brought  by  the  defendant  to  estab- 
lish or  enforce  the  said  interest,  easement,  lien  or  in- 
cundn'ance,  and  the  court  may  award  any  appropriate 
relief  excej^t  as  otherAvise  expressly  prescribed  in  said 
title.      (Co.  Civ.  Proc.  §  1642). 

The  same  right  of  amendment  of  the  pleadings  exists 
in  these  actions  as  in  any  other  actions.  {Brown  V. 
Leigh,  49  N.  Y.  T8).  So  also  the  same  rules  may  apply 
upon  motions  to  open  default  for  irregularity,  and  as 
a  matter  of  favor.       (Roosevelt  v.   Giles,  1  Hill,  166; 


182  I'KAcrii"!:. 

/'/(///  V.  7'()in'i/.  18  \V(Mi(I.  572).  As  to  the  orantino-  of 
an  hijunctioii,  pciidiii^  the  action,  st't*  vol.  1,  p.  ."iTC*. 

\\'h('i-«'  the  (IcIVndant  claims  the  pi-oiicrt y  in  (lucslioii, 
or  any  ]>art  tlici'cof,  l»y  virluc  of  an  estate  in  rcinaindcr 
or  reversion,  he  need  not  estaltlisli  a  ri^^hl  to  the  imme- 
diate possession  thereof;  l»ut  where  the  verdict,  i-ei)ort, 
or  decision  finds  that  he  has  snch  an  estate,  il  mnst 
specify  the  time  when,  or  the  contingency  npon  which, 
he  will  he  entitled  to  possession.  (Co.  Civ.  Proc.  § 
1G43). 

There  are  esi)ecial  code  ]»rovisions  for  the  perpetua- 
tion of  testimony  in  actions  oi-  proceedings  involving  a 
title  to  real  projxM-ty  ( J^v^  l(ISSa-l()88i ),  which  were 
added  in  1!M)1  ;  they  are  very  full  and  self-ex])lanatory, 
and  it  is  not  deemed  essential  to  set  forth  snch  sections 
in  full  here. 

The  action  is  an  eciuitahle  one,  and  there  is  no  right 
to  a  jury  trial,  unless  the  defendant  sets  up  title  in  him- 
self and  asks  affii-mative  i-elief;  if  that  is  done,  the  suh- 
secjuent  proceedings  are  the  same  as  if  it  were  an  action 
of  ejectment,  and  a  jury  trial  is  a  matter  of  right.  (Co. 
Civ.  Proc.  §  1(142;  Kinf/  v.  J'oss,  28  Ai>p.  Div.  371;  app. 
dismissed,  loO  X.  Y.  G81). 

As  to  the  form  of  the  verdict  see  vol.  II,  p.  322.  To 
entitle  the  plaintiff  to  recover,  he  is  in  the  first  in- 
stance required  only  to  show  the  fact  of  one  year's  pos- 
session hy  him  under  a  claim  of  one  of  the  three  titles 
mentioned  in  section  1038  and  that  the  defendant 
claims,  or  might  claim,  to  have  an  estate  in  the  lantl, 
either  in  fee  or  for  life,  or  for  a  term  of  years  not  less 
than  ten,  or  an  interest  in  the  property  such  as  is  speci- 
fied in  section  1G38,  if  these  things  are  disjjuted  and  put 
in  issue  hy  the  answer.  If  the  defendant  has  in  his  an- 
swer set  forth  facts  showing  that  he  has  an  estate  in  the 
property,  he  is  in  regard  to  that  the  actor,  and  he  must 
show  that  he  has  such  a  title  as  is  set  up  in  his  answer, 
and  such  as  the  statute  makes  sufficient  to  entitle  him  to 
judgment.  (Barnard  v.  >s'/;y</y/.s',  42  Barh.  304;  Mcrritt 
V.  Hmith,  50  App.  Div.  349,  353).  If  his  title  is  not  an 
estate  in  fee  or  for  life  or  for-  a  term  of  years,  or  if  he 


OTHER  ACTIONS  UKLATIXCJ  TO  REAL  PROPERTY.   183 

lias  no  such  interest  or  claim  as  section  1G3S  specities, 
then  he  has  no  standiui;  in  court,  and  judgment  should 
be  rendered  against  him  on  the  trial.  (Id.).  The  only 
permissible  form  of  such  a  judgment  is  that  prescribed 
in  section  1G45,  as  we  shall  see  in  the  next  section  of 
this  article. 

Sec.    6.    Judgment. 

Final  judgment  for  the  plaintiff  must  be  to  the  effect, 
that  the  defendaut,  and  every  person  claiming  under 
him,  by  title  accruing  after  the  filing  of  the  judgment- 
roll,  or  of  the  notice  of  the  pendency  of  the  action,  as 
prescribed  in  article  1)  of  the  title  I,  of  chapter  XIV  of 
the  code,  be  forever  barred  from  all  claim  to  any  estate 
of  inheritance,  or  for  life,  or  for  a  term  of  years  not  less 
than  ten,  in  the  property;  or  such  judgment  must  be 
that  the  defendant  and  every  person  claiming  under 
him,  as  above  stated,  be  forever  barred  from  all  claim 
to  any  interest  or  easement  in,  or  lien  or  incumbrance 
upon,  the  said  property,  of  any  kind  or  nature  whatso- 
ever, or  of  au}^  particular  interest,  easement,  lien  or  in- 
cumbrance specified  in  said  judgment;  and  the  court 
may  direct  any  instrument  purporting  to  create  any 
such  interest,  easement,  lien,  or  incumbrance  to  be  de- 
livered up  or  to  be  canceled  of  record;  or  two  or  more 
of  said  forms  of  judgment  may  be  awarded  in  the  same 
action.  If  such  a  judgment  is  taken  upon  the  defend- 
ant's default  in  appearing  or  pleading,  it  shall  not 
award  costs  to  either  party,  unless  it  is  taken  upon  a 
default  in  answering,  after  the  decision  of  a  demurrer 
to  the  complaint.      (Co.  Civ.  Proc.  §  1645). 

Where  a  final  judgment,  in  favor  of  the  defendant,  de- 
termines that  he  is  entitled  to  the  immediate  possession 
of  the  property,  it  must  award  him  possession  accord- 
ingly. The  final  judgment  must  also  award  to  him  his 
damages  for  the  withholding  of  the  property,  as  in  an 
action  of  ejectment.      (Co.  Civ.  Proc.  §  1644). 

Where  it  is  found  that  the  defendant  has  an  estate 
in  reversion  or  reuuiinder,  final  judgment  to  that  effect 
must  be  rendered  accordingly,  without  damages.  In 
such  a  case,  an  execution  for  the  delivery  of  the  posses- 


184  ruACTici:. 

sioii  of  tilt'  i>r<>iHM't,v  iiiav  he  issued  upon  tlic  jud.uuuMit; 
but  «uily  l>y  (lie  special  order  of  the  court,  nuide  ui>ou 
:ni  application  l»_v  \\w  dofeudanl,  or  a  |>erson  claiming 
under  liiiii,  and  satisfactory  i)roof  that  the  time  lias 
ariMNcd  N\  hen,  or  the  contingency  has  hai)[)ened  ui)on 
which,  the  applicant  is  entitled  lo  jjosses.sion  hy  the 
terms  of  the  judiiuient.       (Co.  Civ.  J*roc.  g  1()4IJ). 

For  judicial  ((Muments  on  the  proper  form  of  the  judj;- 
nient,  see  W'/iil nuiii  v.  Cili/  of  Xcir  )'(>rl:  (85  Ap[).  I)iv. 
4(i8,  at  ]).  474),  and  Marill  v.  Smilli  {TA)  A])]).  Div.  84!), 
at  p]).  852-3r);3). 

The  rules  for  entering  and  dockctini;-  the  judgment 
are  the  same  as  in  other  actions.  (See  vol.  II,  p.  680; 
also  chap.  XLIX,  art.  Ill,  §  3,  subd.  0,  ante). 

Sec.    7.    Hew   trial. 

A  new  trial  of  said  action  after  judgment  shall  not  be 
granted  as  a  matter  of  right,  l)ut  the  court  may,  in  its 
discretion  in  the  interest  of  justice,  gi-ant  a  new  trial 
upon  an  ai)plication  made  by  any  party  within  one  year 
after  said  judgment.  But  where  a  defendant  is  an  in- 
fant, an  idiot,  a  lunatic,  an  habitual  druidvanl,  or  im- 
[irisoned  on  a  criminal  charge  or  in  execution  upon  con- 
viction <d'  a  criminal  otfense  for  a  term  less  than  life, 
the  said  defendant  shall  have  the  right,  within  one  year 
aftei'  his  disability  is  terminated,  to  apply  for  and  ob- 
tain a  new  trial  of  said  action,  and  the  representatives 
of  such  a  defendant  shall  have  the  same  I'ight  within  one 
year  after  the  d.eatli  of  said  defendant,  if  such  death 
occurs  while  the  disability  continues.  Upon  any  new 
trial  of  an  action,  brought  as  prescribed  in  this  article, 
the  record  of  the  evidence  given  upon  the  previous  trial, 
may  be  again  offered  to  the  court  by  either  party,  and 
may  be  received  in  evi<lence,  in  case  the  same  evidence 
cannot  be  again  procured.  The  courts  may  make  such 
rules  and  orders  as  to  preserving  the  record  of  the  evi- 
dence given  in  such  actions  and  perpetuating  the  proofs 
produced  therein,  either  with  or  without  the  awarding 
of  any  other  relief  to  the  party  whose  proofs  are  so 
perpetuated,  as  shall  lie  necessary  or  proper,  and  may 


OTHEU    ACTIONS    RELATINCJ    TO    ItEAL    PUOl'EUTY.       185 

embrace  such  directions  in  the  judgment.       (Co.   Civ. 
Proc.  §  1(>4G). 

So  much  of  this  section  as  is  quoted  above,  is  a  part 
of  the  amendment  of  1891.  Formerly,  this  section  gave 
to  a  defeated  defendant,  claiming  an  estate  adverse  to 
the  plaint  iff  which  would  entitle  him  to  immediate  pos- 
session of  the  property,  the  same  right  to  a  new  trial 
as  a  defeated  party  in  an  action  of  ejectment.  As  we 
have  seen  in  section  2  of  this  article,  the  provision  giv- 
ing the  new  trial  as  a  matter  of  right  to  infants,  idiots, 
etc.,  was  inserted  here,  inasmuch  as  such  incompetents 
were  nmde  subject  to  the  action  (not  having  formerly 
been  so)  b^^  the  amendment  of  1891. 

Sec.    8.    Effect   of  judgment. 

A  final  judgment  in  favor  of  either  party,  in  an  action 
brought  as  prescribed  in  this  article,  is  conclusive 
against  the  other  party,  as  to  the  title  established  in 
the  action;  and  also  against  every  person  claiming  from, 
through,  or  under  that  party,  by  title  accruing  after  the 
filing  of  the  judgment-roll,  or  of  the  notice  of  the  pen- 
dency of  the  action  as  prescribed  in  article  ninth  of 
title  I  of  chapter  XIV  of  the  code.  (Co.  Civ.  Proc. 
§  1646). 

Sec.    9.    Action  against  claimant  of  doveer. 

A  person  claiming  as  owner,  an  estate  in  fee,  for  life, 
or  for  years,  in  real  property,  may  maintain  an  action 
against  a  wonmn,  who  claims  to  have  a  right  of  dower 
in  the  whole  or  a  part  of  the  property,  to  compel  the 
determination  of  her  claim.  But  such  an  action  can- 
not be  commenced,  until  the  expiration  of  four  months 
after  the  death  of  the  defendant's  husband.  If  the  de- 
fendant is  under  any  of  the  disabilities  specified  in  sec- 
tion 1646  of  the  code,  the  provisions  of  that  section  re- 
lating to  new  trials  and  to  perpetuating  proofs,  shall 
apply  to  hei-  case.      (Co.  Civ.  Proc.  §  1647). 

The  disabilities  specified  in  that  section  are  infancy, 
idiocy,  or  lunacy  or  that  she  is  an  habitual  drunkard  or 
imprisoned  on  a  criminal  charge,  or  under  execution 


186  i'KA(  ru'E. 

ujx)!!  coiiviclioii  of  a  iriiiiiiuil  ollciisc.  No  notice  is 
i*('(|iiiiv(l  in  tlu'si*  pr(K(H*dlu_iis  u|t(»ii  the  widow  to  de- 
mand her  dower,  as  was  necessary  to  Itc  served  under 
the  revised  stalules.  The  proceedings  mentioned  in 
this  section  are  a  substitute  for  the  proceedings  of  the 
revised  statutes.      It  is  a  civil  action. 

In  an  action  brouiiht  as  specified  in  section  1G4T,  if 
tlie  (•omi>laint  admits  tlie  defendant's  riglit  of  (h)Wer 
in  the  property  described  therein,  or  any  part  thereof, 
it  must  demand  judgment  that  her  dower  be  ad- 
measured. In  that  case,  if  the  (U'fendant  does  not,  by 
her  answer,  set  forth  facts  showing  that  she  is  entitled 
to  a  greater  right  of  dower,  or  another  estate  or  interest 
in  the  property,  than  is  so  admitted,  and  demand  judg- 
ment therefor,  as  if  she  was  the  plaintilT  in  an  action 
for  dower,  the  court  must  ivnder  an  interh)cutory  judg- 
ment, directing  her  dower  to  be  admeasured,  with  or 
without  damages  for  its  detention,  as  in  an  action  for 
dower.  The  subse(|uent  ])roceedings  are  the  same,  as 
if  the  defen(hint  liad,  as  plaiutitT,  recovered  an  inter- 
locutor}^ judgment  in  an  action  for  dower.  (Co.  Civ. 
Proc.  §  1648). 

Where  the  plaintitf  insists,  in  his  complaint,  that  the 
defendant  has  not  a  right  of  dower  in  the  property,  he 
must  d(M)iand  ju<lgment  that  she  be  forever  barred  from 
such  a  claim.  In  that  case,  or  where  the  plaintiff  ad- 
mits a  right  of  dower  in  the  defendant,  and  the  defend- 
ant in  iier  answer  demands  judgment  for  a  greater 
right  of  dower,  or  another  estate  or  interest  in  the  prop- 
erty, than  is  so  admitted,  the  provisions  of  this  article, 
relating  to  an  action  to  compel  the  determination  of  an 
adverse  claim  in  fee,  or  for  life,  or  for  a  term  of  years 
not  less  than  ten,  apply  to  all  proceedings  subsequent 
to  the  answer.      ( Co.  Civ.  Proc.  §  1649 ) . 


OTHER  AC'TIU.NS  UKLATING  TO  UKAL  FUOPERTY.   187 

ARTICLE  IL 

ACTION    FOR    WASTE. 
SECTION. 

1.  What  is  waste. 

2.  Remedies  for  waste. 

3.  Who  may  be  plaintiffs. 

4.  Against  whom  the  action  lies. 

5.  Proceedings  in  the  action. 

6.  Judgment. 

7.  Action  by  joint  tenant  or  tenant  in  common. 

Sec.  1.    'What  is  w^aste. 

Waste  is  the  abuse  or  destructive  use  of  property  by 
him  who  has  not  the  absolute  unqualified  title.  It 
differs  from  trespass  in  that  trespass  is  an  injury  or  use 
without  authority,  of  the  property  of  another,  by  one 
who  has  no  right  whatever.  {DucaU  v.  ^Vaiers,  1 
Bland.  Ch.  569).  Waste  has  also  been  defined  as  an 
improper  destruction  or  material  alteration  or  de- 
terioration of  the  freehold,  or  of  things  forming  an 
essential  part  of  it,  done  or  suffered  by  the  person  who 
is  rightfully-  in  possession  as  tenant,  or  who  has  but  a 
partial  estate,  like  a  mortgagor.  (Hamilton  v.  Austin, 
36  Hun,  138;  affd.,  107  N.  Y.  636).  Cutting  or  carry- 
ing away  timber  by  a  tenant,  for  sale,  is  waste.  But 
the  cutting  of  timber  is  not  waste  in  this  country  Avhen 
it  is  done  by  the  tenant  of  a  farm  which  is  in  a  wild 
uncultivated  state,  and  only  for  the  purpose  of  preparing 
land  for  cultivation.  {Kidd  v.  Di  unison,  6  Barb.  9). 
The  rule  laid  down  in  the  case  last  cited,  however,  does 
not  apply  in  all  cases,  where  farms  are  let  to  a  tenant. 
Tearing  down  houses  or  buildings  upon  land,  or  altera- 
tions of  partitions  in  a  building,  or  the  removal  of  fix- 
tures in  a  l)uildiug  by  a  lessee  is  waste.  (Wotton  v. 
Misc,  47  N.  Y.  Super.  Ct.  Rep.  515).  AA'hen  the  law 
defines  waste  to  be  whatever  does  a  lasting  damage  to 
the  freehold  or  inheritance,  it  does  not  mean  that  it  is 
to  be  left  to  the  jury  to  determine  according  to  the 
notion  of  witnesses,  whether  the  act  complained  of 
causes  such  damage.  Certain  acts  are  in  contemplation 
of  law  />cr  sc  injurious  to  the  freehold;  and  the  only 


ISS  I'KAi  rici:. 

siil»J('(t  (»f  iiKniii-v  I'oi-  tile  jiirv  in  cmsc  of  such  acts,  is 
wlictiici'  tlicv  lia\('  Ix'cii  coimnillcd.  [Med rajor  \. 
Jirnini,  ]()  N.  V.   1  14). 

Sec.    2.    Remedies  for  waste. 

At'toi-  waste  lia<l  liccn  actually  coiiiniittcd,  tlic  anciciil 
corrective  i-eiiiedy  in  a  couit  of  common  law  was  by  a 
writ  of  waste  for  the  recovei-_v  of  the  |»lace  wasted,  and 
ti'eble  dama_i;('s  as  compensation  foi-  the  injury  done  to 
the  iidiei'itance.  (Co.  JJt.  53  a).  'Phei-e  were,  how- 
ever, several  cases  to  which  a  writ  of  waste  did  not  ex- 
tend, as  to  which,  the  pai'ty  was  left  without  any  remedy 
at  ccMumon  law.  The  action  of  waste  could  only  have 
been  Ijroui^ht  l>y  him  wlnt  had  the  imme<liate  reversion 
or  remainder,  to  the  disinheritance  of  whom  the  waste 
was  always  allejicd  to  have  been  committed.  {DuraJJ 
V.  Waters,  1  Bland.  V\\.  5G!)).  In  additicui  to  the  writ 
of  waste,  the  injured  party  had  an  action  on  the  case 
in  the  natui-e  of  waste,  by  which  he  recoven^d  damaj'es 
according  to  the  nature  of  the  injury  sustaiucMl.  (8  Bl. 
Comm.  227).  The  defect  of  the  common  law  was 
remedied  by  stattite  very  early  in  the  history  of  this 
state.  (K.  L.  of  1813,  527,  §  33;  1  Bev.  Stat.  750,  §  S). 
The  action  of  waste  was  further  i'ei>ulated,  and  the  man- 
ner of  bi'inging  it  fixed  by  the  revised  statutes.  (2  Bev. 
Stat.  334).  All  those  i)rovisions  of  the  statutes  have 
been  repealed;  and  the  sections  of  the  code  of  civil 
procedure  which  are  <'ited  in  this  ai'ticle  have  been  sub- 
stituted in  their  i)lace;  and  the  only  i-emedy  is  now  a 
civil  action,  ])i-ovided  and  regulated  by  those  sections  of 
the  code. 

The  action  may  be  brought  only  in  the  supreme  court. 
A  county  court  has  no  jui-isdiction  of  the  action.  It  is 
a  local  action,  and  must  be  brought  in  the  county  in 
which  the  i)remises  are  situated.  (Vol.  II,  p.  127).  It 
is  triable  l)y  a  jury.  (  V(d.  II,  ]).  212).  The  proceed- 
ings in  it  are  the  usual  proceedings  in  a  civil  action. 
As  to  an  injunction  to  stay  waste  pending  the  action, 
see  vol.  I,  p.  578;  see,  also,  chap.  XLIX,  art.  Ill,  §  3, 
subd.  2,  supra. 


OTHER    ACTIONS    UELATING    TO    REAL    ntOl'EKTY.       181) 
Sec.    3.    Who  may  be  plaintiffs. 

At  oommou  law,  as  we  have  seen,  the  action  could 
ouly  be  brought  by  him  who  had  the  immediate  rever- 
sion or  remainder.      (3  Bl.  Comm.  227). 

A  person,  seized  of  an  estate  in  remainder  or  rever- 
sion, may  maintain  an  action  founded  upon  an  injury 
done  to  the  inheritance,  notwithstanding  any  interven- 
ing estate  for  life  or  for  years.      (Co.  Civ.  Proc.  §  1605). 

This  section  is  the  same  as  the  provision  of  the  revised 
statutes  heretofore  cited.  (1  Rev.  Stat.  750,  §  8;  Bouton 
V.  TJioiiKis,  46  Hun,  6).  Under  this  section  the  re- 
mainderman may  bring  the  ordinary  elevated  railroad 
action.  {TJioiitp.soii  v.  Manhattan  Raihraj/  Co.,  130 
N.  Y.  360).  One  who  has  a  vested  remainder  may 
maintain  the  action  against  a  tenant  for  life  {Williains 
V.  Pcahodij,  8  Hun,  271)  ;  and  that  action  may  be 
brought  b}'  him  immediately  after  the  commission  of 
the  acts  of  waste.      {Rohinson  v.  Kintc,  70  N.  Y.  147). 

Where  the  action  is  brought  by  a  remainderman  in 
fee,  against  one  holding  under  a  tenant  for  life,  it  is  not 
necessary  for  tlu^  owner  of  the  intervening  estate  to 
unite  as  a  plaintiff.     Van  Dcuscn  v.  Youiuj,  29  N.  Y.  9). 

An  heir  or  devisee  may  maintain  an  action  for  waste, 
committed  in  the  time  of  his  ancestor  or  testator,  as  well 
as  in  his  own  time.  The  grantor  of  a  reversion  may 
maintain  an  action  for  waste,  committed  before  he 
aliened  the  same.     (Co.  Civ.  Proc.  §  1652). 

The  rule  of  this  section  seems  also  to  have  been  the 
rule  at  common  law.  {Robinson  v.  Wheeler,  25  N.  Y. 
252). 

Where  real  property  is  sold  by  virtue  of  an  execution, 
the  person,  to  whom  a  conveyance  is  executed  pursuant 
to  the  sale,  may  maintain  an  action  for  waste,  committed 
thei  eon  after  the  sale,  against  the  person,  Avho  was  then 
in  possession  of  the  property.     (Co.  Civ.  Proc.  §  1654). 

A  judgment  creditor  before  sale,  has  no  such  lien  upon 
the  property  as  would  authorize  him  to  maintain  an 
action  for  waste.  {Lanninf/  v.  Carpenter,  48  N.  Y.  408. 
One  who  redeems  the  land  sold  on  execution  may  main- 
tain an  action  for  wast«^  after  receiving  the  sheriff's 
deed.     {Thomas  v.  Crofut,  14  N.  Y.  474).     The  remedy 


11)0  rUACTICE. 

which  tho  Inw  provides  lor  llic  jmrchjiscr  before  a  con- 
vcvaiicc  will  lie  round  in  volume  II,  pn.uc  l()4li. 

Such  an  adiiui  inav  also  l»c  niainlaincil  a<;ciiust  a 
uuai-dian  l»,v  his  ward,  eilhei-  hefoi-e  or  aftei-  the  teiMuina- 
tion  of  the  jiuai'dianship,  for  waste,  coinniitled  upon  the 
real  property  <d"  the  wai-d,  duiinj;  the  <»uardiauKhii). 
(Co.  Civ.  Troc.  §  Kir),"]). 

One  joint  tenant  oi-  tenant  in  common  ma}^  also  main- 
tain this  action  against  his  co-tenant.  (Co.  Civ.  Proc. 
§  1656). 

Sec.    4.    Against  xchom  the  action  lies. 

An  action  for  waste  lies  against  a  timant  bv  the  cur- 
tesy, in  dower,  foi-  life,  or  for  years,  or  the  assignee  of 
such  a  tenant,  who,  during  his  estate  or  term,  commits 
waste  upon  the  real  property  held  by  him,  witlnmt  a 
special  and  lawful  written  license  so  to  do;  or  against 
such  a  tenant,  who  lets  or  grants  his  estate,  and,  still 
retaining  ])ossession  thereof,  commits  waste  without  a 
like  license.     (Co,  Civ.  Proc.  §  1651). 

At  common  law  the  action  did  not  lie  against  the  as- 
signee of  a  tenant;  but  only  against  the  tenant  himself. 
( Bates  V.  ^chrucdcr,  13  Johns.  1^60 j.  The  rule  laid 
down  by  that  case  was  changed  by  the  statutes  which 
are  finally  cons(»lidated  in  section  1651,  cited  above.  As 
to  who  is  such  an  assignee  of  a  tenant,  see  Cole  v.  Bickel- 
haiipt.  (64  App.  Div.  6.)  Where  the  waste  is  committed 
by  the  assignee  of  the  tenant,  the  tenant  is  not  liable 
therefor,  except  upon  a  covenant  in  the  lease ;  the  action 
of  waste  lies  against  the  assignee.  (Donald  v.  Elliott, 
11  ^lisc.  120).  The  action  of  waste  will  not  lie  against 
a  stranger.  The  remedy  against  him  is  by  an  action  of 
trespass.  {  Lir in f/ston  w  Hay ivood,  11  Johns.  429).  It 
will  lie  by  an  infant  against  his  guardian,  either  before 
or  after  the  termination  of  his  trust.  (Co.  Civ.  Proc. 
§  1653).  Where  lands  had  been  devised  by  a  testator  to 
his  infant  son,  and  C.  was  appointed  sole  executor  of  his 
will  and  trustee  of  all  the  estate  for  the  son,  and  the 
trustee  entered  into  possession  of  the  real  estate  after 
the  death  of  the  testator,  and  committed  waste;  it  was 


OTHER  ACTIONS  RELATING  TO  REAL  PROPERTY.   191 

held  that  the  action  for  waste  woiiUl  not  lie  against  the 
trustee  as  he  had  no  interest  t)r  estate  in  the  land  de- 
vised; and  that  the  remedy  in  that  case  was  by  an  action 
in  equity  to  restrain  him.  {Kuicaid  v.  >>cott,  12  Johns. 
308).  Where  a  mortgagee  seeks  to  recover  for  the  im- 
pairment of  his  security  by  waste  committed  by  a  third 
person  having  knowledge  of  his  lien,  it  is  not  necessary 
under  the  code  to  allege  or  show  the  insolvency  of  the 
mortgagor.  {0(/dcn  Lumber  Co.  v.  Bussc,  92  App.  Div. 
143).  It  nmy  be  brought  by  one  joint  tenant  or  tenant 
in  common  against  another.  (Co.  Civ.  Proe.  §  1656; 
Cosgriff  v.  Dciccij,  164  N.  Y.  1). 

Sec.    5.    Proceedings  in  the  action. 

The  proceedings  in  this  action  are  precisely  the  same 
as  those  in  any  other  action  where  judgment  can  only 
be  taken  by  application  to  the  court.  The  plaintiff  is 
entitled  to  recover  treble  damages  and  also,  where  the 
action  is  brought  by  the  person  next  entitled  to  the 
reversion,  and  the  injury  to  his  estate  is  equal  to  the 
value  of  the  tenant's  estate,  or  it  appears  that  the  injury 
was  done  malicioush^  the  plaintiff  is  entitled  to  recover 
possession  of  the  place  wasted.  ( Co.  Civ.  Proc.  §  1655 ) . 
Treble  damages  should  be  asked  for  in  the  complaint; 
but  it  is  not  necessary  that  the  complaint  should  contain 
any  further  reference  to  the  statute  under  Avhich  they 
are  claimed.  (Robinson  v.  Kinne,  1  T.  &  C.  69;  ap- 
proved on  subsequent  appeal,  sub.  noni.,  Robinson  v. 
Kime,  70  N.  Y.  147,  155).  If  the  defendant  makes  de- 
fault the  damages  sho.uld  be  ascertained  by  a  writ  of  in- 
quiry.    (Vol.  II,  p.  722). 

In  an  action  for  waste,  it  is  not  necessary,  either  upon 
the  execution  of  a  writ  of  inquiry,  or  upon  the  trial  of 
an  issue  of  fact,  that  the  jury,  the  judge,  or  the  referee, 
should  view  the  property.  Where  the  trial  is  by  a 
referee,  or  by  the  court  without  a  jury,  the  referee  or 
the  judge  may,  in  his  discretion,  view  the  property,  and 
direct  the  attorneys  for  the  parties  to  attend  accord- 
ingly. In  any  other  case,  the  court  may,  in  its  discre- 
tion, by  order,  direct  a  view  by  the  jury.  (Co.  Civ.  Proc. 
§  1659). 


192  I'KACTU'E. 

Altlioiiiili  tliciv  is  (Icfanlt,  I  he  plaintiff  iimst  still 
prove*  that  the  iiijurv  t(t  liis  estate  is  e(|iial  to  the  \alue 
of  the  detViulaiit's  estate  hel'ore  he  can  haNC  Judiiiiieiil 
to  recover  the  place  wasted,  in  addition  to  the  trehie 
daniajnes;  an  allegation  to  that  elTect  in  the  complaint 
is  not  admitted  by  the  default  of  the  <lefendant.  {har- 
den V.  Ihudcn,  1T>  IJarh.  4011).  Where  the  action  is 
brouinht  by  the  remain<h'i-man  in  fee  against  one  in  pos- 
session- under  the  tenant  U:v  life,  he  can  recover  only 
such  damages  as  are  done  to  the  inheritance,  (\an 
Dcusi'H  v.  Youny,  2!)  X.  V.  !) ).  The  fact  that  the  defend- 
ant has  acted  in  good  faith,  and  upon  the  impression 
that  the  premises  wasted  wei-e  his  own,  is  no  defense  to 
the  recovery  of  treble  damages.  ( lioh'nisoii  v.  Kiiiic, 
70  X.  Y.  147).  The  damages  are  not  necessarily  the 
value  simi)ly  of  the  woo<l  an<l  tindter  removed,  but  the 
solid  and  permanent  injui-y  to  the  inhei-itance.  In  esti- 
mating that,  there  is  to  be  considered  ihe  eifect  which 
the  cutting  off  of  the  wood  and  timber  has  iiad  upon  the 
place  u]H)u  which  the  waste  is  alleged  to  have  been  com- 
mitted. [II aide II  v.  Ihirdcii.  '1(\  Barb.  400).  The 
measure  of  damages  is  the  diminution  of  the  market 
value  of  the  whole  property  by  i-eason  of  the  injury,  un- 
less that  amount  is  greater  than  the  reasonable  cost  of 
re])airing  tin*  injury,  in  which  case  svu-h  cost  only  will 
be  allowe<l.  ((>(/<lcit  Luinhcr  Co.  v.  Biissc,  92  Api». 
Div,  143).  The  verdict  of  the  jury  in  all  cases  should 
be  for  single  damages;  and  as  to  the  manner  of  ai)plying 
for  increased  damages,  see  vol.  11,  pp.  383,  304,  734. 

Sec.    6.    Judgment. 

dudgment  is  to  be  entered  and  docketed  as  in  other 
actions. 

If  the  plaintiff  recovers  in  an  action  for  waste,  other 
than  an  action  brought  as  prescribed  in  section  lOoO, 
the  final  judgment  must  award  to  him  treble  damages. 
Where  the  action  is  brought  by  the  jK'rson  next  entitled 
to  the  reversion,  and  it  appeai-s,  in  like  manner,  that  the 
injury  to  the  estate  in  i-eversion  is  e(|ual  to  the  value  of 
the  tenant's  estate  or  unex])ii'ed  term,  oi-  that  it  was 
done  maliciously,  the  final  judgment  must  also  award  to 


OTHER  ACTIONS  RELATING  TO  REAL  PROPERTY.   19d 

the  plaintiff  the  forfeiture  of  the  defendant's  estate,  and 
the  possession  of  the  place  wasted.  (Co.  Civ.  Proc. 
§  1()55). 

If  the  action  is  by  a  tenant  in  common  or  joint  tenant 
against  his  co-tenant,  he  may  at  his  election,  either  have 
a  jndpnent  for  treble  damages  or  for  partition  of  the 
property.  (Co.  Civ.  Proc.  §  1056).  See,  also,  section 
seven,  infra. 

Sec.    7.    Action  by  joint  tenant  or  tenant  in  common. 

An  action  for  waste  may  also  be  maintained,  by  a 
joint  tenant  or  tenant  in  common,  against  his  co-tenant, 
who  commits  waste  npon  the  real  property  held  in  joint 
tenancy  or  in  common.  If  the  plaintiff'  recovers  therein, 
he  is  entitled,  at  his  election,  either  to  a  final  jndgment 
for  treble  damages,  as  specified  in  section  1655,  or  to 
have  partition  of  the  property,  as  prescribed  in  sections 
1657  and  1658.     (Co.  Civ.  Proc.  §  1656). 

The  election  spoken  of  in  this  section  need  not  be 
made  until  after  the  verdict  or  decision.  If  the  defend- 
ant makes  default,  it  would  seem  that  the  election 
should  be  notified  to  the  court  either  at  the  time  of  the 
application  for  the  writ  of  inijuiry,  or  after  that  has 
been  executed  and  when  the  application  for  judgment 
has  been  made. 

AVhere  the  plaintiff  elects  to  have  partition,  as  pre- 
scribed in  section  1656,  if  the  pleadings,  verdict,  report 
or  decision,  do  not  determine  the  rights  and  interests  of 
the  several  parties  in  the  property  so  held  in  joint  ten- 
ancy or  in  common,  the  court  must  ascertain  them,  by 
a  reference  or  otherwise.  If  it  appears  that  there  are 
persons,  not  parties  to  the  action,  who  must  have  been 
made  parties  to  an  action  for  the  partition  of  the  prop- 
erty, the-y  must  be  brought  in  by  a  supplementary  sum- 
mons, and,  if  necessary-,  supplemental  pleadings  must 
be  made.  When  the  rights  and  interests  of  all  the 
parties  are  ascertained,  an  interlocutory  judgment  for 
the  partition  or  sale  of  the  property  must  be  rendered, 
and  the  subsequent  proceedings  thereon  must  be  the 
same,  as  in  an  action  for  the  partition  of  the  property, 
13 


194  I'UAC'IICE. 

exfcpt    as  ollH'i'wisc   prcsci-ilx'd    in   sect  ion    KJ^S.      (Co. 
(Mv.  Troc.  §  l(;r>7  ). 

Tlic  ]»lMiiititT  ma.v  clccl  to  lake  tinal  Ju(lj;ment  for  the 
siiiiilc  (lania.ucs  awardt'd  (o  him,  or  tliat,  in  niakiii*;  tho 
partition,  or  in  dividing;  the  i)roretMls  «d"  a  saU',  so  much 
of  the  share  of  the  defendant  in  the  real  property,  or 
the  i)roeeeds  thereof,  as  will  be  sufficient  to  compensate 
the  ])laintilf  for  his  single  damaij^cs,  and  the  costs  of  the 
action,  other  than  the  expenses  of  making-  the  partition 
or  sale,  be  laid  olf  or  paid,  as  the  case  may  be,  to  the 
plaintiff.  The  residue  of  the  pr()i)erty  or  pi-oceeds,  not 
laid  off  or  distributed  to  the  plaintitT  or  the  defendant, 
must  be  laid  oif  or  paid  to  the  persons  entitled  thereto, 
according-  to  their  respective  rights  and  interests.  (Co. 
Civ.  rroc.  §  1658). 


ARTICLE  III. 

ACTION  FOR  A   NUISANCE. 
SECTION. 

1.  The  remedy  for  a   nuisance. 

2.  Against  whom  the  action  may  be  brought. 

3.  Proceedings  in  the  action. 

4.  Judgment. 

Sec.    1.    The  remedy  for  a  nuisance. 

A  nuisance  is  defined  by  Blackstone  as  "anything  that 
worketh  hurt,  inconvenience  or  damage."  (3  Comm. 
215).  As  applied  to  real  property  it  is  "anything  done 
to  the  hurt  or  annoyance  of  the  lands,  tenements  or  her- 
iditaments  of  another."  (Id.).  Nuisances  are  of  two 
kinds,  public  and  private.  At  common  law  the  only 
remedy  by  the  people  for  a  public  nuisance  was  an  in- 
dictment. (3  Bl.  Crmim.  210).  It  has  been  held,  how- 
ever, of  late  years  that  the  people  might  i)roceed  by  an 
action  to  procure  a  judgment  restraining-  the  nuisance. 
{People  v.  Metro.  Tel.  Co.,  31  Ilun,  .51)6-  11  Abb.  N.  C. 
304;  Citij  of  Utlca  v.  Itica  Tel.  Co.,  24  App.  Div.  361; 
City  of  Rochester  v.  Bell  Teleph.  Co.,  52  App.  Div.  6; 
Cifi/  of  Xew  Torli  v.  Thorln/.  N.  Y.  Law  Journal,  Nov. 
19,     1901;    affd.    without    op.,    73    App.     Div.     626), 


OTHER  ACTIONS  RELATING  TO  REAL  TROPERTY.   195 

\Mierever  it  appears  that  a  public  niiisauee  works  a 
special  injury  to  auy  private  persou,  such  person  has  his 
remedy  to  proceed  ai;aiust  the  nuisance  in  the  same  way 
as  though  it  were  private.  (Co.  Lit.  54;  Lansing  v. 
tinilth,  4  Wend.  9 ) .  At  common  law,  for  a  private  nuis- 
ance there  were  two  remedies;  a  writ  of  nuisance,  and 
an  action  on  the  case.  The  judgment  upon  the  writ  of 
nuisance  was  that  the  nuisance  be  removed  and  that  the 
plaintiff  recover  his  damages  occasioned  thereby.  (2 
Rev.  Stat.  333,  §  3).  It  would  seem,  however,  that  the 
proceeding  by  the  writ  of  nuisance  was  not  favored,  and 
that  the  more  customary  way  at  comm<m  law  was  by  an 
action  on  the  case.  {Brown  v.  Woodirorth,  5  Barb. 
550).  In  such  an  action  judgment  could  not  go  for  the 
removal  of  the  nuisance,  but  only  to  the  plaintiff  for 
such  damages,  as  he  might  suffer  by  reason  of  its  exist- 
ence. (3  Bl.  Comm.  220).  A  party  who  was  injured  by 
the  nuisance  might  also  proceed  in  chancery,  and  obtain 
a  judgment  restraining  it,  and  damages  which  he  had 
suffered  because  of  it.  [Tan  Bergen  v.  Tan  Bergen,  2 
Johns.  Ch.  212).  The  code  of  civil  procedure  has  sub- 
stituted a  civil  action  in  all  cases. 

An  action  for  a  nuisance  may  be  maintained  in  any 
case,  where  such  an  action  might  have  been  maintained 
under  the  laws  in  force,  immediately  before  the  code 
took  effect.     (Co.  Civ.  Proc.  §  1660). 

The  article  does  not  affect  an  action,  wherein  the 
complaint  demands  judgment  for  a  sum  of  nionej^  onl}^ 
(Co.  Civ.  Proc.  §  1663).^ 

The  object  of  this  last  section  was  to  prevent  the  ap- 
plication of  section  1661  (infra)  to  an  action  to  recover 
damages;  and  to  guard  against  such  a  construction  of 
section  1660  as  would  disturb  the  existing  regulation  of 
such  action.     (Throop's  note  to  §  1663). 

The  action  for  a  nuisance  preserves  to  the  plaintiff 
the  right  to  all  the  damages  he  formerly  had  by  a  writ 
of  nuisance.  (Cogsircll  v.  N.  Y.,  N.  H.&  H.  R.  R.  Co., 
105  N.  Y.  319).  The  action  may  be  brought  either  for 
<lamages  for  the  nuisance  or  in  equity  to  restrain  the 
nuisance,  and  for  damages  for  the  injury  caused  by  it. 
TIk^  people  may  also  maintain  the  action  to  restrain  a 


llMi  I'UACl'lCi;. 

pulilic  imisancc.  {  rcuplc  v.  Mrlro.  Tel.  Co.,  31  Tliin, 
.")!)«■>).  Any  pcrsoii  who  siilTcrs  a  spcrial  iiicoiivciiiciicc 
I'i'oiii  the  nuisanct"  wlicilici-  ii  Ix'  |»ul)lic  or  |>i'i\al«',  may 
iiiaiiitaiii  an  aclioii  to  abate  it  and  I'oi-  dainauvs.  (  rincr 
V.  Dart,  7  (/ow.  GOD;  (Jralianrs  Vv.  41  ).  The  lessee  of 
lands  adj()ininj»'  those  on  whicli  the  nuisance  exists  niav 
maintain  an  action  to  abate  it.  {I)c  Jjuncij  v.  Blizzard, 
7  Hun,  7).  ANliere  several  persons  owning-  separate  tene- 
ments are  all  injuriously  atfeeted  by  the  nuisance,  they 
may  unite  in  an  action  for  its  removal.  {Miirif/  v.  Jiai/, 
1  liarb.  Ch.  51)). 

Sec.    2.    Against   xirhoiii   the   action   may  be  brought. 

A  person  by  whom  the  nuisance  has  been  erected,  and 
a  person  to  whom  the  real  property  has  been  transferred, 
may  be  joined  as  defendants  in  such  an  action.  (Co. 
Civ.  Proc.  §  1()()1). 

The  plaintitf  is  not  nniuired  by  this  section  to  join  tli«' 
lirantee  of  the  real  property,  but  each  defendant  may 
be  sued  separately  in  the;  same  manner  as  other  wronj;- 
<loers.  (Irrine  v.  Mood,  51  N.  Y.  224,  230).  It  is  not 
necessary  that  the  defendant  should  have  a  freehold  in- 
terest in  the  land,  if  it  is  allci^ed  in  the  complaint  that 
he  maintains  the  nuisance  with  the  consent  of  the  owner 
(Horton  v.  Jiroinisrjj,  10  X.  Y.  St.  Kep.  800)  ;  unless  it 
is  sou<;ht  by  the  action  to  abate  the  nuisance,  in  which 
case  the  owner  of  the  fee  must  be  a  defendant.  (Hiitch- 
ins  v.  Smith,  03  Barb.  251 ).  One  who  erects  a  nuisance 
on  his  lands,  and  then  conveys  the  land  with  warranty, 
with  the  nuisance  upon  it,  is  liable  for  it  {W'acjfjoner  V. 
Jcnnaiiic,  3  Den.  306)  ;  but  to  chariie  him  with  the  nuis- 
ance after  conveyance  of  the  land,  it  must  appear  that  he 
derives  some  benefit  from  its  continiumce,  or  that  he 
sold  the  land  with  warranty  of  the  continued  use  of  the 
])roi)erty  as  it  was  enjoyed  while  the  nuisance  existed. 
(Hanse  V.  Counnf/,  1  Lans.  288).  One  who  has  taken  a 
conveyance  of  the  land  with  a  nuisance  upon  it,  and  who 
(•(mtinues  the  nuisance  after  the  conveyance  has  been 
made  to  him,  is  liable  for  its  continuance;  but  only  after 
notice  of  its  existence  has  been  brou<>ht  home  to  him. 
It   is  not  necessai-y,  however,  that  the  plaintiff  should 


OTHER    ACTIONS    UELATIXG    TO    UEAL    I'UOrEUTY.       197 

prove  a  re(iuest  to  him  to  remove  it  before  recovery. 
(Vonhocton  Htonc  Road  v.  B.,  N.  Y.  db  E,  R.  R.  Co.,  51 
N.  Y.  573). 

Sec.   3.   Proceedings  in  the  action. 

There  are  no  special  statutory  regulations  with  regard 
to  the  pleadings.  Those  are  governed  by  the  general 
rules  with  reference  to  such  matters,  which  will  be  found 
in  their  proper  places  in  volume  one.  If  the  abatement 
of  the  nuisance  is  asked  for,  the  complaint  must  show 
that  the  defendants,  or  some  of  them,  are  owners  of  the 
premises  upon  which  it  is  situated.  {Ellsworth  v.  Put- 
nam, 16  Barb.  565).  The  action  is  a  local  one,  and  the 
place  of  trial  is  in  the  county  where  the  nuisance  is 
maintained.  (Vol.  II,  p.  127).  Where  the  action  has 
been  brought  against  a  municipal  corporation  which  de- 
posited in  the  river  in  one  county,  offal  and  sewage 
which  flowed  down  and  created  a  nuisance  upon  the 
land  of  the  plaintiff  in  another  county ;  it  was  held  that 
the  place  of  trial  was  in  the  county  in  which  the  foul 
substances  were  deposited  in  the  river,  and  not  where 
the  nuisance  was  caused.  {Home  v.  City  of  Buffalo,  49 
Hun,  76). 

As  to  the  mode  of  trial,  see  volume  II,  pp.  213-214, 
where  that  question  is  fully  discussed.  If  the  case  is  one 
where  trial  by  jury  is  a  matter  of  right,  upon  default 
the  damages  must  be  assessed  by  a  writ  of  inquiry. 
(Vol.  II,  p.  722).  If  it  is  not  such,  the  court  upon  ap- 
plication for  judgment,  may  order  a  reference,  which  is 
to  be  conducted  in  the  same  way  as  incidental  refer- 
ences in  other  actions.  As  to  the  injunction  pending 
the  action,  see  volume  I,  p.  564. 

Sec.    4.    Judgment. 

A  final  judgment  in  favor  of  the  plaintiff  may  award 
him  damages,  or  direct  the  removal  of  the  nuisance,  or 
both.     (Co.  Civ.  Proc.  §  1662). 

This  is  the  same  judgment  as  was  formerly  authorized 
on  a  writ  of  nuisance. 


198  PRACTICE. 

ARTICLE  IV. 

ACTION  AGAINST  PERSONS   1I()LMN(;  OVER. 

A  person  in  possession  of  ical  proiuTty,  as  guardian 
or  trustee  for  an  infant,  or  lia\  inji;  an  estate  determina- 
ble upou  oue  or  more  lives,  who  holds  over  aud  eoutiuues 
in  possession,  after  the  deteruiiuatiou  of  his  trust  or 
partieular  estate,  without  the  exi)i'ess  eonscnt  of  the 
person  theu  immediately  entitled,  is  a  trespasser.  Au 
action  may  be  umiutained  against  him,  or  his  executor 
or  administratoi',  by  the  jiersou  so  entitled,  or  his  execu- 
tor or  administrator,  to  recover  the  full  value  of  the 
profits,  received  during  the  wrongful  occupation.  (Co. 
Civ.  Proc.  §  1G04). 

This  section  changes  the  character  of  the  person  hold- 
ing over  from  that  of  a  tenant  at  sulferance  to  that  of  a 
trespasser,  and  therefore  no  notice  to  quit  would  be 
necessary  before  bringing  the  action  of  ejectment 
against  him.     {Lii:inf/.st(>ii  v.  Tanner,  14  N.  Y.  64). 

ARTICLE  V. 

ACTION  BY  .JOINT  TENANT  TO  RECOVER  HIS  SHARE  OF  RENTS 
AND  PROFITS. 

A  joint  tenant  or  a  tenant  in  common  of  real  prop- 
erty, or  his  executor  or  administi-ator,  may  maintain  au 
action  to  recover  his  just  proportion  against  his  co-ten- 
ant, who  has  received  more  than  his  own  just  propor- 
tion, or  against  his  executor  or  administrator.  (Co. 
Civ.  Proc.  §  1006). 

Ordinarily  the  right  to  recover  under  this  section  is 
limited  to  the  proportionate  share  of  the  net  amount 
actually  received ;  and  no  recovery  can  be  had  there- 
under for  what  a  co-tenant  who  is  himself  in  possession 
of  the  land,  takes  therefrom  and  applies  to  his  own  use. 
(Josli/n  V.  Joslijn,  0  II un,  388).  Where  it  appeared, 
however,  that  the  defendant  refused  to  allow  the  plain- 
tiff to  use  and  enjoy  his  intei-ests  in  the  ])remises,  or  to 
let  him  into  possessicm  or  to  pay  him  any  sum  for  the  use 


OTHER    ACTIONS    UELATING    TO    REAL    rROl'KRTY.       199 

and  occupation,  and  occupied  (he  premises  in  such  man- 
uer  that  the  phiintilT  c<uiid  have  uo  beneticial  use 
thereof,  it  was  hekl  that  tiie  phiiutitf  was  entitled  to  re- 
cover his  share  of  the  rental  value  of  the  premises,  al- 
though it  did  not  appear  that  the  defendant  had  actually 
received  any  rent  thereof.  A  judgment  that  he  should 
account  to  the  plaintiff  for  the  rents  and  protits  of  the 
premises,  and  pay  to  the  plaintiff  his  share  of  the  rental 
value,  was  affirmed.  {M uklotcneij  v.  Morrit^  tt-  Esscjo  R. 
R.  Co.,  42  Hun,  444) ,  For  a  recent  example  of  the  appli- 
cation of  section  166G,  see  Gcdncy  v.  Gcdiicy  (IGO  N.  Y. 
471,  476). 


AKTICLE  VI. 

ACTION  FOR  TIMBER  CUT  BY  TRESPASSER. 

If  any  person  cuts  down  or  carries  off  any  wood,  un- 
derwood, tree,  or  timber,  or  girdles  or  otherwise  despoils 
a  tree  on  the  land  of  another,  without  the  owner's  leave; 
or  on  the  common,  or  other  land,  of  a  city,  village,  or 
town,  without  having  right  or  privilege  in  those  lands, 
or  license  from  the  proper  officer;  an  action  nmy  be 
maintained  against  him,  by  the  owner,  or  the  city,  vil- 
lage, or  town,  as  the  case  may  be.  (Co,  Civ,  Proc.  § 
1667). 

The  object  of  the  legislature  was  to  protect  timber 
land  against  wilful  trespassers;  and  the  section  does 
not  embrace  the  case  of  a  tenant  against  whom  it  would 
be  necessary  to  bring  an  action  to  determine  whether  or 
not  the  defendant  had  the  right  to  cut  the  timber.  ( Van 
Deuscn  v.  Young,  29  N.  Y.  9,  34). 

In  an  action  brought  as  prescribed  in  section  1667, 
the  plaintiff  may  state  in  his  complaint  the  amount  of 
his  damages,  and  demand  judgment  for  treble  the  sum 
so  stated.  Thereupon,  if  the  inquisition,  or  where  issues 
of  fact  are  tried,  the  verdict,  report,  or  decision,  awards 
him  any  damages,  he  is  entitled  to  judgment  for  treble 
the  sum  so  awarded,  except  that  in  either  of  the  follow- 
ing cases,  judgment  must  be  rendered  for  single  damage 
onlv : 


L'OO  I'llACTlCi:. 

1.  NN'hcrc  tlic  vci'dicl,  rcpoi't,  or  decision  liiids  nllinii- 
ati\('lv  I  hat  the  injiirv,  loi-  wliidi  llic  action  was 
ln-oii_iiiit,  was  casual  and  in\<)liiniar\  ;  or  that  the  de- 
fendant, when  ho  coniniitted  the  injurv,  had  )»i-olialth' 
cause  to  believe  that  the  land  was  his  own. 

2.  Whei-e  the  defendant  has  jjleaded,  and  the  verdict, 
report,  or  decisiou  finds  attirniatively,  that  the  injury, 
for  which  the  action  was  bi-ouiiht,  was  coniniitted  by 
takini*-  timber,  for  the  purpose  of  niakin.u  or  repaii-injij  a 
l)ublic  road,  or  a  i)ublic  bridge;  or  by  takin<;  any  wood, 
underwood,  or  tree,  for  a  like  i)uri)ose,  by  authority  of 
a  conunisisoner  or  overseer  of  highways.  (Co.  Civ.  Proc. 
§  1()G8). 

A  lessee  for  years  is  not  an  owner  within  the  meaning 
of  the  statute  and  cannot  maintain  the  action.  (  Lncis 
v.  Thntnp.Hon,  3  App.  l)iv.  329).  The  measure  of  dam- 
ages is  not  simply  the  value  of  the  wood  cut,  as  was  the 
rule  under  the  revised  laws  (1  Kev.  L.  of  1813,  524),  but 
is  the  ditference  in  value  of  the  land  before  and  after 
cutting  doAvn  the  trees.  {McCnuJcii  v.  Roch.  h*//.  Co., 
5  Misc.  59;  affd.  on  op.  beloAv,  IT  II un,  009).  Upon  a 
verdict  for  the  plaintift"  in  such  an  action,  he  is  entitled 
as  a  matter  of  right  to  have  the  danmges  trebled,  unless 
it  is  found  affirmatively  that  the  injury  was  casual  and 
involuntary,  or,  that  the  defendant  when  he  committed 
the  injury  had  probable  cause  to  believe  that  the  land 
was  his  own.  [Humes  v.  Proctor,  73  Hun,  205;  aflfd., 
151  N.  Y.  520).  It  would  seem  that  it  is  not  necessary 
for  the  defendant  to  plead  that  the  act  of  which  com- 
plaint was  made  was  a  casual  or  involuntary  act,  al- 
though it  ii^  incumbent  upon  him  to  show  upon  the  trial 
that  such  was  the  fact.  (Van  Siclen  v.  Jamaica  Elec- 
tric Light  Co.,  45  App.  Div.  1,  5;  affd.  on  op.  below,  168 
N.  Y.  650).  In  this  connection  it  is  to  be  noted  that 
there  is  a  difference  in  the  language  of  subdivision  1 
and  subdivision  2  of  section  1008;  while  it  is  not  neces- 
sary for  the  defendant  to  plead  the  casual  or  involun- 
tary nature  of  the  act,  or  the  probable  cause  to  believe 
that  the  land  was  his  own,  in  order  to  secure  an  aflfirma- 
tive  verdict  that  the  injury  occurred  un<h»r  such  cii-cum- 
stances,  under  subdivision   1,  the  express  language  of 


OTHER  ACTIONS  RELATING  TO  REAL  PROPERTY.   201 

subdivision  2  riMjiiires  such  a  plea,  in  order  that  the  de- 
fendant may  show  that  the  injury  was  committed  by 
taking  timber  for  the  purpose  of  making  or  repairing  a 
public  road,  or  a  public  bridge,  or  b}^  taking  any  wood 
or  tree  for  like  purpose  by  authority  of  tlie  commissioner 
or  overseer  of  highways.  Of  course,  the  ad  damnum 
clause  in  the  complaint  must  be  for  a  sufficiently  large 
amount  to  cover  the  damages  as  trebled.  {Pharis  v. 
Gere,  31  Hun,  443).  As  to  the  manner  of  applying  for 
treble  damages  see  volume  II,  pages  383,  394,  734. 


ARTICLE  VII. 

ACTION  AGAINST  FORCIBLE  EJECTORS. 

If  a  person  is  disseized,  ejected,  or  put  out  of  real 
property,  in  a  forcible  manner ;  or  after  he  has  been  put 
out,  is  held  and  kept  out,  by  force,  or  by  putting  him  in 
fear  of  personal  violence,  he  is  entitled  to  recover  treble 
damages,  in  an  action  therefor  against  the  wrongdoer. 
(Co.  Civ.  Proc.  §  1G69). 

Treble  damages,  as  provided  by  this  section,  may  be 
recovered  in  an  action  of  ejectment.  ( Compton  V.  ^'^The 
Chelsea/'  139  N.  Y.  538).  In  an  action  under  section 
1669,  however,  the  complaint  need  not  describe  the 
plaintiff's  interest  in  the  premises;  it  is  sufficient  to 
show  that,  at  the  time  of  the  ejection,  the  plaintiff  was 
in  peaceable  possession  of  the  premises.  {Waterhunj  v. 
Deekelmann,  50  App.  Div.  434).  Of  course,  the  entry  or 
detainer  must  be  forcible,  in  order  to  justify  treble  dam- 
ages. (Baeh  v.  New,  23  App.  Div.  548).  The  damages 
cannot  be  trebled  where  there  are  two  causes  of  action, 
one  under  1669,  and  one  for  conversion,  and  where  the 
verdict  is  a  general  one.  {Kirchener  v.  New  Home  Sew- 
ing Mack.  Co.,  16  N.  Y.  Supp.  761;  revd.  on  other 
grounds,  135  N.  Y.  182).  There  can  only  be  a  recovery, 
under  section  1669,  for  damages  happening  at  and  after 
the  time  of  the  disseisin  and  whatever  is  recovered  must 
be  the  consequences  of  the  force  used  to  evict.  (Lahro 
V.  CamphcJh  56  N.  Y.  Super.  Ct.  Rep.  70). 


CHAPTER  LIV. 

ACTION   TO   RECOVER  A  CHATTEL. 


ARTICLE  I....  When  it  will  lie. 
ARTICLE  II... Proceedings   in   the   action. 
ARTICLE  III.. Taking   the  property. 


ARTICLE  I. 

WHEN  IT  WILL  LIE. 
SECTION. 

1.  In  what  cases  it  may  be  brought. 

2.  For  what  property  it  may  be  biought. 

3.  Waiver  of  right  to  bring  replevin. 

Sec.    1.   In  wrhat  cases  it  may  be  brought. 

It  is  said  that  the  original  action  of  replevin  was  de- 
vised by  Glanville,  chief  justice  of  King  Henry  II.,  for 
the  purpose  of  affording  a  remedy  against  a  person  for 
chattels  wrongfully  taken.  Blackstone  says  that  this 
was  the  only  use  made  of  the  remed}^;  but  this  position 
is  evidently  not  well  taken,  and  is  not  warranted  by  the 
books.  The  old  authorities  are  that  "replevin  lies  for 
goods  taken  tortiously  or  by  a  trespasser;  and  that  the 
party  injured  may  have  trespass  or  replevin  at  his  elec- 
tion." The  action  was  usually  brought  to  try  the  legal- 
ity of  the  distress.  It  was  not  however  confined  to  this 
alone,  but  would  lie  for  any  wrongful  or  unlawful  tak- 
ing of  the  chattel.  {Elij  v.  Ehle,  3  N.  Y.  506;  Stauff  v. 
Maker,  2  Daly,  142).  Replevin  was  the  most  compli- 
cated of  all  the  common  law  actions,  and  it  is  said  by 
Judge  Daly  that  there  were  so  many  courses  of  proceed- 
ure  and  so  many  forms  and  distinctions  that  it  is  very 
difficult  at  the  present  day  even  with  all  the  aid  of  the 

(203) 


lM)4  iMtAC'i'ici;. 

cjnlv  iH'ixuis  and  trcaliscs,  lo  asccilaiii  llic  [iract  ice  that 
pK'vaihMl,  with  entire  oxactncss.     (  L*  l>aly,  145,  notei. 

'riic  couiiiion  law  pi-act ice  was  vci-v  largely  clian^cd 
fi-oMi  lime  to  lime  in  lOn^laiid  l»_v  stalnlc;  hut  it  is  not 
necessary  here  to  iu(iiiire  wilh  leuaid  lo  those  ehanj»;es. 
In  this  state  hy  the  revised  statutes  the  whoh'  action 
was  so  thorou«>iily  revised  uud  reuuMleled  as  to  become  in 
fact  a  new  action,  which  was  aUowed  to  be  brouj'ht  for 
wi()n<ifully  distrainiuii,  takiuji,  or  (U'taining'  j^oods  or 
chattels,  or  l)y  executors  or  otiier  persons  suinji'  in  the 
rioht  of  another,  where  they  were  authorized  to  main- 
tain trespass  for  the  wroniiful  takinjn'  of  personal  proj)- 
ert}'.  The  course  of  procedure  in  the  action  throu<ihout 
was  provided  for  l)v  the  statute,  and  the  action  of  de- 
tinue was  abolished.  [Simtff  v.  Muhcv,  2  Daly,  142, 
140). 

The  history  of  the  action  is  very  lariiciy  discussed  in 
the  case  of  Manning  v,  Kcenan  (73  N.  Y.  45),  and  in 
^^iinnntt  v.  Friofk  (165  N.  Y.  444).  Under  the  code  of 
pi'oc(Hlure,  that  poition  of  the  procedure  in  the  action 
with  regard  to  taking-  of  the  property  by  the  sheriff  for 
the  plaintiff,  and  the  subsecpu^it  proceeding  with  regard 
to  the  care  and  custody  of  the  ]>roperty  was  no  pai't  of 
the  action;  but  was  strictly  a  provisional  remedy.  The 
provisions  of  that  code  were  not  veiy  full  as  to  the  prac- 
tice in  the  action  of  rei)levin;  and  they  did  not  consti- 
tute a  cf)niplete  system  without  resorting  to  the  former 
law.  Whatever  was  omitted  by  the  code  of  procedure 
with  i-egard  to  the  conduct  and  determination  of  the 
action  was  to  be  found  in  the  revised  statutes,  which, 
as  to  those  matters,  it  was  necessary  to  follow. 

The  provisions  of  the  i-evised  statutes  with  reference 
to  the  action  of  re])levin,  and  those  of  the  code  of  j)ro- 
cedure  with  regard  to  the  claim  and  delivery  of  per- 
sonal property  were  based  upon  entirely  dilferent  and 
in  some  cases  contradictory  the<M'ies.  Tnder  the  revised 
statutes  the  plaintiff  was  put  in  i)ossession  of  the  prop- 
erty in  contr(>versy  by  means  of  the  very  ju-ocess  by 
which  the  action  was  commenced  ;  imt  under  the  code  of 
procf^lure,  the  action  was  commenced  by  the  sei'vice  of 
an  ordinary  summons;  and  it  was  entirely  immaterial  to 


ACTION    TO    UECOVER    A    CHATTEL.  205 

the  right  of  recovery  whether  a  process  replevying  the 
propert^^  had  or  had  not  been  issued. 

The  code  of  civil  procedure,  however,  has  entirely 
abolished  the  provisions  of  both  the  revised  statutes  and 
of  the  code  of  procedure  on  this  subject ;  and  an  action 
to  recover  a  chattel  as  now  regulated  is  substantially  a 
substitute  for  the  action  of  replevin  as  it  had  existed 
under  the  former  statutes.  (Griffin  v.  Long  Island  R. 
R.  Co.,  101  N.  Y.  318,  352).  It  is  not  necessary  to  the 
maintenance  of  the  action  that  the  defendant  should  be 
in  possession  of  the  property  at  the  time  of  its  com- 
mencement. (Nichols  V.  Michael,  23  N.  Y.  264;  H  in  not 
V.  Feiock,  165  N.  Y.  411,  117). 

The  revised  statutes  provided  that  whenever  any 
goods  or  chattels  should  have  been  wrongfully  dis- 
trained or  otherwise  wrongfully  taken  or  should  be 
wrongfully  detained,  an  action  of  replevin  might  be 
brought  for  the  recovery  thereof,  and  for  the  recover}^  of 
damages  sustained  b^'  reason  of  su^h  unjust  caption  or 
detention.  (2  Rev.  Stat.  522,  §  1).  By  the  revised  stat- 
utes, replevin  was  extended  as  a  general  rule  to  those 
cases  in  which,  at  common  law,  either  replevin,  detinue, 
trespass,  or  trover  was  a  remedy.  (Brockway  v.  Bur- 
nap,  16  Barb.  309).  The  provisions  of  the  revised  stat- 
utes i'n  that  regard  have  now  been  repealed,  and  the  stat- 
utes nowhere  prescribe  the  precise  cases  in  which  the 
action  of  replevin  may  be  brought.  It  is  believed,  how- 
ever, that  the  section  of  the  revised  statutes  quoted 
above,  still  states  the  general  rule.  Certain  cases  were 
prescribed  by  the  revised  statutes  in  which  the  action 
could  not  be  maintained;  those  are  noW'  contained  in 
section  1690  of  the  code  of  civil  procedure,  which  is  as 
follows : 

An  action  to  recover  a  chattel  cannot  be  maintained, 
in  either  of  the  following  cases  : 

1.  Where  the  chattel  w^as  taken  by  virtue  of  a  war- 
rant, against  the  plaintiff,  for  the  collection  of  a  tax, 
assessment,  or  fine,  issued  in  pursuance  of  a  statute  of 
the  state  or  of  the  United  States;  unless  the  taking  was, 
or  the  detention  is,  unlawful,  as  specified  in  section  1695 
of  the  code. 


IMJO  PRACTICE. 

2.  Where  it  was  seized  Itv  \  irluc  of  au  oxecnlion,  or  a 
warrant  of  attaehiiieut,  a<i,aiiist  the  property  of  the 
phiintilf,  unless  it  was  h'jially  exempt  from  such  seizure, 
or  is  unlawfully  «letaine(l,  as  specitied  in  section  \i\U7) 
of  the  code. 

8.  Where  it  was  seized  by  virtue  of  an  execution,  or  a 
warrant  of  attachment,  against  the  property  of  a  i)erson 
other  than  the  plaintiff,  and  at  the  time  of  the  com- 
mencement of  the  action  the  plaintiff  had  not  the  right 
to  reduce  it  into  his  possession,     ((.'o.  (Jiv.  Proc.  g  1  (»!)()). 

The  plaintiff,  to  entitle  him  to  maintain  the  action, 
must  have  a  present  right  of  possession  in  the  chattel. 
{^\  ood  V.  Orscr,  25  N.  Y.  348).  One  who  has  an  equita- 
ble interest  in  property  which  has  been  taken  from  his 
possession  by  a  wrongdoer  can  maintain  an  action  of 
replevin  for  the  property,  although  he  is  not  the  abso- 
lute owner.  {Frost  v.  Mott,  34  N.  Y.  253).  The  owner 
of  fixtures  which  have  been  severed  from  the  land  may 
have  replevin  for  them,  if  he  was  in  the  actual  or  con- 
structive possession  of  the  premises  at  the  time  when  the 
property  was  severed.  {J  oh  it-son  v.  Ehrood,  53  X.  Y. 
431 ) .  A  mortgagee  of  personal  property  who  is  entitled 
to  its  possession  may  maintain  the  action  of  replevin 
against  the  sheriff  who  has  taken  the  property  by  exe- 
cution against  the  mortgagor,  after  default  in  the  condi- 
tions of  the  mortgage.  (  Willis  v.  O'Brien,  35  N.  Y. 
Super.  Ct.  Kep.  536).  The  phrase  "right  to  reduce''  to 
possession,  us(»d  in  subdivision  3  of  section  1690,  was 
intended  to  cover  a  case  where  the  possession  of  the 
plaintiff  was  constructive,  and  not  actual ;  it  was  not 
intended  to  cover  a  case  where  the  right  to  reduce  to 
possession  was  potential  only  and  which  required  for  its 
existence  the  doing  of  some  act  which  sliould  terminate 
a  legal  possession  in  another  as  owner,  and  transfer 
the  right  of  possession  to  the  plaintiff;  so,  where  a.  sale 
was  induced  by  fraud  and  the  goods  were  levied  on  under 
an  execution  against  the  vendee  before  the  vendor  had 
exercised  his  option  to  rescind,  it  was  held  that  the 
vendor  could  not  maintain  rei)levin  against  the  sheriff, 
as  section  161)0  then  read;  his  remedy,  it  was  suggested, 
was   by   an   Jiction   of   conversion   against   the   sheriff. 


I 


ACTION    TO   RECOVER   A   CHATTEL.  207 

(Wise  V.  Grants  140  N.  Y.  593).  At  the  time  of  that  de- 
cision, subdivision  3  of  section  1690  read :  "  and  at  the 
time  of  the  seizure  the  plaintiff  had  not  the  right  to  re- 
duce it  into  his  possession'' ;  after  that  decision,  the  leg- 
ishiture  amended  the  subdivision  by  changing  "seizure" 
to  ''the  commencement  of  the  action''  (chap.  305,  Laws 
1894)  ;  so  that,  as  the  law  now  stands,  a  seller  can  re- 
scind a  sale  after  the  seizure  but  before  the  commence- 
ment of  his  action  and  then  maintain  replevin  against 
the  sheriff.  {Dcpew  v.  Beakes,  44  N.  Y.  Supp.  774). 
Where  a  sale  has  been  induced  by  fraud,  the  vendor  can 
maintain  replevin  against  the  vendee,  even  though  the 
defendant,  before  action  brought,  had  transferred  the 
goods.  (Nichols  v.  Michael,  23  N.  Y.  264;  Barnett  v. 
Selling,  70  N.  Y.  492;  Dunham  v.  Troy  Union  R.  R.  Co., 
3  Keyes,  543).  Where,  however,  the  goods  have  been 
taken  from  such  fraudulent  vendee  compulsorily,  as  on 
execution,  prior  to  a  demand  for  their  return  and  be- 
fore the  commencement  of  the  action,  replevin  will  not 
lie.  (/S^mwof^  V.  i^eiocA',  165  N.  Y.  444).  One  who  has  a 
lien  for  salvage,  has  a  special  property  in  the  chattel, 
and  may  maintain  replevin  for  it.  {Baker  v. 
Hoag,  7  N.  Y.  555 ) .  A  bank  which  has  received  a  draft 
for  collection,  with  collateral  to  secure  its  payment,  has 
a  special  property  in  the  collaterals,  which  enables  it  to 
maintain  replevin  for  them.  {Corn  Exchange  Bank  v. 
Blije,  2  N.  Y.  St.  Rep.  112).  A  wife  who  lives  apart 
from  her  husband  may  maintain  replevin  against  him 
for  her  separate  property,  which  he  detains  from  her. 
{Houland  v.  Hoicland,  20  Hun,  472). 

One  whose  property  has  been  taken  by  virtue  of  pro- 
cess against  a  third  party,  may  maintain  replevin  for  it, 
whether  it  was  taken  by  the  sheriff  {Alvord  v.  Haynes, 
13  Hun,  26),  or  by  a  collector  of  taxes  (L.  S.  &  M.  R.  R. 
Co.  V.  Roach,  80  N.  Y.  339),  or  if  the  judgment  on  which 
the  process  was  issued  was  void  for  lack  of  jurisdiction 
of  the  court  (Mills  v.  Martin,  19  Johns.  7)  ;  but  such  a 
person  cannot  nmintain  an  action  against  the  receiptor 
who  has  taken  the  property  from  the  officer  for  safe 
keeping  with  the  consent  of  the  owner,  although  the  tak- 
ing by  the  officer  was  wrongful.     ( Chapman  v.  Andreics, 


208  I'KACTici:. 

3  Wcud.  240).  A  rcccivci'  of  the  pi-opci-ty  of  ;i  haiiki-upt 
may  be  sued  in  iciilcx  in  l»y  one  chiiininjj;'  permanent  title 
to  ])i'0])erty  in  liis  jjossession  as  receiver.  {Corn  l!.r- 
(■hdiif/c  lik.  V.  lUiic  101  X.  V.  :>0:)).  So  also  where  cer- 
tain certificates  of  deposit  had  Iteeii  deposited  willi  Ihe 
clerk  <.f  a  court  under  a  judunient  snl»se<|ueutly  reversed, 
replevin  was  held  lo  lie  against  the  clei'k  for  them  hy  the 
person  elaiminij;  to  he  the  owner  of  them.  (Read  v. 
linii/lon,  14o  X.  Y.  342).  AVhere  one  has  Avrouiifully 
takiMi  personal  property  of  another  who  afterwai-ds  died, 
the  ]»ersonal  representatives  of  the  deceased  person  may 
maintain  i'e]>levin  for  the  pro])erty,  if  it  still  cimtiniies 
in  the  hands  of  the  wrongdoer.  (  J'ottcr  V.  Van  ^'r(^ul■(■n, 
36  N.  Y.  619).  An  officer  who  has  taken  goods  into  his 
])ossession  hy  virtue  of  ])rocess  may  maintain  replevin 
ai;ainst  a  third  party  who  takes  the  projH'rty  away  with- 
out right  or  authority.  {Barker  v.  Miller,  6  Johns.  195; 
Barker  v.  Biiininf/er,  14  N.  Y.  270). 

An  action  to  recover  a  chattel,  the  title  to  which  has 
been  transferred  to  the  plaintiff,  since  the  wrongful 
taking,  or  during  the  wrongful  detention  thereof,  with 
or  without  the  damages  sustained  by  the  taking,  with- 
holding, or  detention,  may  be  maintained  in  any  case, 
where,  exce])t  for  the  transfer,  such  an  action  might  be 
nuiintained,  b^'  the  i)erson  from  or  through  whom  the 
plaintiff  derives  title;  but  not  otherwise.  (Co.  Civ. 
Proc.  §  1092). 

One  tenant  in  common  of  a  chattel  cannot  maintain 
replevin  against  another  w^ho  has  taken  the  chattel  into 
his  possession.  ( Hudson  v.  Sn-an,  83  N.  Y'.  552). 
AA'here,  however,  the  personal  property  is  divisible  in  its 
nature,  and  the  tenants  in  common  have  agreed  upon  a 
division  of  it,  and  settled  the  portion  belonging  to  each 
one,  one  of  those  whose  portion  is  thus  allotted  can 
bring  replevin  against  his  co-tenant  who  refuses  upon 
denmnd  to  deliver  it  to  him.  (Lohdcll  v.  i^ton-ej],  51  X^. 
Y'.  70  ).  A  receiver  in  supplementary  ])roceedings  cannot 
maintain  an  action  to  recover  personal  property  which 
was  mortgaged  by  the  judgment  debtor  before  the  ap- 
pointment of  the  receiver,   where  the  mortgagee  has 


ACTION    TO    KECU\'EU    A    CHATTEL.  209 

taken*  the  property  iuto  his  possessiou.  (Fettibone  v. 
Draheford,  37  Hun,  628;  21  Wk.  Dig.  90).  Before  an 
action  can  be  maintained  against  anj  person,  it  must 
appear  tliat  he  has  or  lias  had  the  i)ropertj  wrongfully 
in  his  possessiou.     [M  heeler  v.  Allen,  51  N.  Y.  37). 

Where  the  defendant  has  the  k*gal  title  as  trustee  of 
the  plaintiff,  an  action  for  replevin  will  not  lie  against 
him  ( Id. )  ;  neither  will  it  lie  in  any  case  against  an  agent 
if  he  could  not  be  held  liable  for  the  conversion  of  the 
property,  on  demand ;  as  where  the  agent  had  disposed 
of  the  property  of  his  principal  in  accordance  with  an 
agreement  between  them.  {Xatl.  S.  S.  Co.  v.  ^heclian, 
122  N.  Y,  465).  If  the  goods  of  one  are  taken  by  an  un- 
authorized levy,  replevin  will  lie  not  only  against  the 
ofdcer  but  also  against  the  plaintiff'  in  the  execution,  if 
he  directed  the  levy  to  be  made.  (Kiiapp  v.  >imith,  27 
K  Y.  277 ;  AUeu  v.  \u-arjj,  10  Wend.  349  ) .  If  the  defend- 
ant came  lawfully  into  possession  of  the  goods,  replevin 
will  not  lie  against  him  for  them,  until  after  a  demand 
on  him  and  a  refusal  ( Goodwin  v.  Werthelnier,  99  N.  Y^. 
149)  ;  as  where  the  goods  have  been  wrongfully  obtained 
from  the  plaintiff  and  b^-  the  wrongdoer  transferred  to 
a  third  person  who  takes  them  without  notice  of  the 
fraud  (Id.)  ;  but  if  the  defendant  is  not  a  bona  fide  pur- 
chaser of  the  goods  from  the  original  vendee  no  demand 
is  necessary  before  the  commencement  of  the  action. 
The  tortious  acquisition  of  the  property  by  the  first 
vendee  affects  the  subsequent  purchaser  as  Avell  as  the 
original  taker,  and  he  is  really  a  trespasser.  (Salomon 
v.  Van  Praag,  6  Hun,  529).  Where  a  demand  is  neces- 
sary, it  is  not  sufficient  to  make  a  demand  upon  a  ser- 
vant ;  and  his  refusal  will  not  authorize  the  action  of  re- 
plevin against  the  master,  unless  he  acts  under  the  di- 
rection of  the  master  in  refusing  to  deliver  the  goods. 
C  Goodwin  V.  ^Veriheimer,  supra ) .  The  court  say  in  that 
case  that  it  can  make  no  difference  in  respect  to  the 
sufficiency  of  the  demand  against  the  master  that  the 
servant  knew  that  the  person  making  the  demand  was 
entitled  to  the  property,  or  that  the  master's  title  was 
voidable.  An  agent  or  servant  having  the  custody, 
14      ^ 


210 


ri(A('Ti('i:. 


merely,  of  j^oods  eauuoL  l)iu(l  llie  pi-incipal  h\  aec'edinj^ 
to  the  (lemand  of  a  third  person,  nor  on  the  other  hand 
by  refusinii'  to  (h-liver  the  i)roperty. 

The  court  further  say,  however,  that  it  may  be  that  in 
a  case  where  the  party  conceals  himself,  or  goes  beyond 
the  jurisdiction,  so  as  to  render  a  pei-sonal  demand  im- 
practicable, he  would  be  deemed  thereby  to  have  con- 
ferred upon  the  custodian  of  the  property  an  authority 
to  answer  a  demand  made  by  the  true  own(M';  but 
whether  or  not  that  were  the  law,  the  court  did  not  de- 
cide. Where  one  has  taken  possession  of  the  property 
wrouiifuUy,  no  demand  is  necessary  before  the  action 
will  lie.  '{Pierce  v.  \'an  Dyke,  G  Hill,  613).  If  the  de- 
mand is  refused,  and  the  defendant  refuses  to  restore 
the  i)r()i)erty,  but  afterwards,  and  before  the  action, 
oHers  to  restore  it,  replevin  will  not  lie  for  it.  {Savage  v. 
Perkins,  11  How.  Pr.  17). 

Sec.    2.    For   ivliat   property   it   may   be  brought. 

The  object  of  the  action  of  replevin  is  the  recovery  of 
specific  personal  property,  and  not  especially  of  dam- 
ages for  its  taking.  Damages  for  the  detention  of  the 
property  are  only  incidental  to  the  suit  and  not  an  es- 
sential part  of  it.  The  plaintiff  must  therefore  be  able 
to  identify  the  specific  property  which  is  the  subject  of 
the  action,  so  that  delivery  can  be  made  of  it;  and  the 
action  will  lie  for  any  specific  property  which  can  be 
thus  identified.  {(Jrares  v.  DudJeij,  20  n!  Y.  76).  Where 
the  object  of  the  action  is  to  recover  money,  it  will  lie 
if  the  money  is  specifically  described,  and  the  plaintiff 
shows  himself  entitled  to  the  possession  of  the  specific 
money  as  described.  {Sager  v.  Blain,  44  N.  Y.  445) .  The 
action  may  be  maintained  for  a  chose  in  action,  as  an  in- 
surance policy  ( Luckr//  v.  Gannon,  6  Abb.  Pr.  N.  SS. 
209)  ;  or  a  promissory  note.  {Decker  v.  Matthews,  12 
N.  Y.  313).  The  maker  of  a  promissory  note  may  main- 
tain replevin  for  it,  against  a  person  who  before  it  has 
any  legal  inception  has  wrongfully  negotiated  it  to  a 
bona  pdc  holder  for  value.  (Decker  v.  Mat  theirs,  12  N. 
Y.  313).  The  action  f(n'  replevin  will  lie  for  bonds 
or  certificates  of  stock   {Corn  E-rcIninge  Bank  v.  BIjje, 


ACTION    TO   KECOVEll   A   CHATTEL.  211 

2  N.  Y.  St.  Rep.  112)  ;  and  for  a  land  contract  which 
has  been  fnlly  paid.  [Hazcircll  v.  Coarsen,  36  N.  Y. 
Super.  Ct.  Rep.  459).  It  will  not  lie  by  the  drawer  of  a 
check  against  the  drawee  who  has  fraudulently  received 
it  after  the  check  has  been  paid  and  delivered  back  to 
the  drawer.  (Barneft  v.  Helling,  70  N.  Y.  492).  It  has 
been  said  that  replevin  will  not  lie  for  property  in  the 
custody  of  the  law  (Hall  v.  Tattle,  2  Wend.  475)  ;  but 
this  rule  has  its  exceptions  which  are  mentioned  in  sec- 
tion one,  sapra. 

Where  the  property  of  one  not  a  party  to  the  action 
has  been  taken  by  the  sheriff  from  the  possession  of  the 
owner,  he  may  bring  replevin  for  it,  as  we  have  seen; 
but  where  the  property  of  a  third  person  is  in  the  pos- 
session of  the  defendant  or  his  agent,  and  is  taken  by 
the  sheriff  from  such  possession  by  virtue  of  the  affida- 
vit and  requisition,  the  action  of  replevin  will  not  lie. 
(Edgerton  v.  Ross,  6  Abb.  Pr.  189).  In  that  case  the 
remedy  of  the  owner  is  found  in  sections  1709  and  1710 
of  the  code  of  civil  procedure,  which  are  referred  to  in 
article  III,  section  11  {iafra}.  Where  the  property  is 
held  by  the  clerk  of  the  police  board  of  the  city  of  New 
York,  he  holds  it  merely  as  the  agent  of  the  criminal 
court,  and  subject  to  its  orders;  and  it  cannot  be  taken 
away,  nor  can  replevin  be  brought  for  it  until  that  cus- 
tody is  ended  by  the  conviction  or  acquittal  or  by  an  or- 
der of  the  magistrate  permitting  its  surrender  to  the 
owner,  but  after  the  conviction  or  acquittal  the  property 
clerk  has  no  claim  to  it  as  against  the  rightful  owner, 
and  replevin  will  lie.  (Simpson  v.  St.  John,  93  N.  Y. 
363;  Lgnch  v.  St.  John,  8  Daly,  142).  So  long  as  ar- 
ticles are  affixed  to  the  freehold,  replevin  will  not  lie  for 
them.  ( Cresson  v.  Stoat,  17  Johns.  116 ) .  But  although 
they  were  a  part  of  the  realty  yet  after  they  have  been 
severed  by  a  wrongdoer,  an  action  of  replevin  may  be 
brought  for  them  by  the  owner  of  the  real  estate.  ( John- 
son V.  Elhrood,  53  N.  Y.  431).  It  was  held  in  De  Mott 
v.  Ha  germ  an  (8  Cow.  220)  that,  where  one  had  entered 
and  ousted  the  owner  of  land  and  cut  off  and  removed 
the  crops,  replevin  would  not  lie  by  the  owner  for 
the  crops  so  removed;  and  that  the  only  way  was  by  an 


2lL*  PKAcTin:. 

action  for  trespass  after  hv  had  rciiained  the  possession 
of  the  property.  But  it  was  lield  iu  a  later  case  that, 
where  one  has  titk^  to  hiuds  on  wliicli  <;Towinji-  timber 
stands,  lie  niii^ht,  althonjih  he  was  not  in  j)osscssion  of 
the  lands,  maintain  an  action  of  replevin  against  the 
person  who  was  in  possession  under  a  void  deed  and  who 
cut  and  carried  away  the  limber  and  bark.  {YomiKiit.s 
V.  Francisco,  15  Wk.  Dig.  312). 

Where  a  chattel  is  replevied,  in  an  action  to  recover 
the  same,  and  a  final  judgment  awarding  the  i)ossession 
thereof  to  the  defendant  is  rendered,  a  subseciuent  action 
to  recover  the  same  chattel  cannot  be  nuiintained  by  the 
plaintiff,  for  the  same  cause  of  action.  But  the  judg- 
ment does  not  affect  his  right  to  maintain  an  action  to 
recover  damages,  for  taking  or  detaining  the  same  or 
any  other  chattel,  unless  it  was  rendered  against  him 
upon  the  merits.     (Co.  Civ.  Pioc.  §  161)1). 

xVs  to  Avhen  a  judgnu'nt  is  on  the  merits  within  the 
meaning  of  this  section,  see  Conuncrvc  Eich.  ^at.  Bk.  v. 
Blye  (123  N.  Y.  132).  Of  course,  a  dismissal  for  failure 
to  prosecute  is  not  a  final  judgment  upon  the  merits. 
{rorgcs  V.  Coltcii,  23  .Misc.  703). 

Sec.    3.    Waiver  of  right  to  bring  replevin. 

The  general  rule  is  that  where  a  party  has  his  choice 
of  two  inconsistent  remedies,  any  decisive  act  on  his 
part  with  knowledge  of  his  rights  and  of  the  facts  by 
which  he  chooses  one  of  them,  determines  his  rights  and 
he  cannot  resort  to  the  other.  {Fowler  v.  Bowery  i<ar. 
Bdiik,  113  X.  Y.  150).  This  rule  especially  applies  to  an 
action  of  replevin.  In  almost  every  case,  the  person  en- 
titled to  the  property  may  bring  either  replevin  or  trover 
at  his  option;  and  usually  if  he  selects  one  he  cannot 
afterwards  resort  to  the  other.  {Heymour  v.  Van  Cnren, 
18  How.  Pr.  91).  So  the  usual  rule  is  that  where  goods 
have  been  procui-ed  from  the  owner  by  the  fraud  of  the 
defendant,  if  the  owner  l)rings  an  action  of  replevin  for 
them  he  cannot  afterwards  sue  for  their  value;  and  rice 
rcrm.  (Wile  v.  Broinishin ,  .35  Hun,  08).  This  rule, 
however,  is  not  without  exception.  It  only  applies 
where  the  plaintiff  has  secured  some  benefit  from  his 


ACTION    TO   RECOVER   A   CHATTEL.  213 

first  action.  (A',  f.  Foiindrij  Co.  v.  Herscc,  33  Hiiii, 
169).  It  will  not  be  applied  where  the  first  action  has 
been  discontinued  before  the  plaintiff  obtained  any  bene- 
fit or  the  defendant  sustained  any  injury  from  its  prose- 
cution [E.  C.  Found fi/  Co.  V.  Hcrsee,  supra;  affd.  103 
N.  Y.  25)  ;  although  the  plaintiff  may  have  obtained  a 
provisional  remedy  in  the  first  suit.  {Johnson  v.  Frew, 
33  Hun,  193).  The  commencement  of  an  action  for  the 
price  of  goods  which  have  been  fraudulently  obtained 
from  the  plaintiff  will  not  constitute  such  an  election  of 
remedies  as  to  preclude  him  from  a  subsequent  action  of 
replevin  for  the  goods  sold,  after  the  first  action  has 
been  discontinued,  if  it  appears  that  at  the  time  the  first 
action  was  brought  the  plaintiff  had  no  knowledge  that 
the  representations  upon  the  faith  of  which  the  sale  was 
made  were  fraudulent  and  untrue.  {Bach  v.  Tuch,  17 
Hun,  536;  Hays  v.  ^r^das,  101  N.  Y.  602). 

Where  an  order  of  arrest  is  granted,  as  prescribed  in 
title  1  of  chapter  VII  of  the  code,  the  plaintiff's  right  to 
a  replevin  is  subject  to  the  following  regulations : 

1.  If  the  defendant  has  been  arrested,  pursuant  to  the 
order,  a  subsequent  replevin  cannot  be  made  of  a  chattel, 
with  respect  to  which  the  order  was  granted. 

2.  If  the  defendant  has  not  been  arrested,  a  subse- 
quent replevin  of  a  chattel,  with  respect  to  which  the 
order  was  granted,  supersedes  the  order.  (Co.  Civ. 
Proc.  §  1711). 


ARTICLE  II. 

PROCEEDINGS   IN    THE   ACTION. 
SECTION. 

1.  Wlien  and  how  commenced. 

2.  Pleadings  and  proceedings. 

3.  Verdict. 

4.  Judgment. 

Sec.    1.    'When  and  how  commenced. 

The  action  of  rei»levin  is  commenced  like  any  other 
action,  by  the  service  of  a  summons.  (  Vol.  I,  chap.  V  ). 
The  onlv  difference  between  this  and  other  actions  is  in 


214  PRACTICE. 

the  rclicl'  (Ic'inaihlcd,  and  in  I  lie  rii;lit  which  is  ^iveu  to 
the  ithiintilf  during-  the  pen(h*n( y  of  the  action  to  take 
the  property  into  his  possession.  (See  arti<de  III, 
infra).  The  takinjj;-  of  the  proixMly,  however,  is  not 
essential  to  the  maintenance  of  the  action.  It  is  more 
in  the  nature  of  a  provisional  remedy;  and  under  the 
code  of  procedure  it  was  rej;arded  and  treated  exclu- 
sively as  such. 

The  plaintiff  may  proceed  in  the  action,  and  recover 
therein  the  chattel,  or  its  value,  althouj>h  he  has  not  re- 
(|uired  the  sheriff  to  replevy  it,  or  the  sheriff  has  not 
been  able  to  replevy  it.      (Oo.  Civ.  Proc.  §  1718). 

AVhere  a  chattel  is  replevied  before  the  service  of  the 
summons,  as  prescribed  in  the  article  of  the  code  on 
replevin,  the  seizure  thereof  by  the  sheriff  is  regarded 
as  equivaJent  to  the  grantinii  of  a  provisional  remedy, 
for  the  purpose  of  giving  jurisdiction  to  the  court,  and 
enabling  it  to  control  the  subsequent  proceedings  in  the 
action;  and  is  equivalent  to  the  commencement  of  the 
action,  for  the  purpose  of  determining,  whether  the 
plaintiff  is  entitled  to  maintain  the  action,  or  the  de- 
fendant is  liable  thereto.      (Co.  Civ.  Proc.  §  lfi03). 

The  seizure  of  the  property  by  the  sheriff  gives  the 
court  jurisdiction  to  grant  an  order  of  arrest;  and  this 
may  be  done  before  the  service  of  the  summons  on  the 
defendant.  (Acker  v.  ihiutcniunn,  27  II un,  48).  At 
common  law  the  action  of  replevin  was  a  local  action 
(Williams  V.  Welch,  5  Wend.  2\H))  ;  since  that  time, 
however,  it  is  a  personal  action,  and  is  governed  by  the 
same  rules  as  other  actions  (vol.  II,  p.  130,  ei  seq.)  ; 
except  that  by  subdivision  3  of  section  983  of  the  code, 
whei-e  the  action  is  brought  to  recover  a  chattel  which 
has  l)een  distrained,  it  must  be  tried  in  the  county  where 
the  cause  of  action  arose.  (Vol.  II,  p.  131).  A  pro- 
visional remedy  may  be  granted  in  the  action  for  a 
proper  cause.  The  limitation  of  the  right  to  the  order 
of  arrest  is  prescril)ed  in  section  1714  of  the  code,  which 
is  found  in  article  I,  section  3,  supra.  If  an  action  is 
l>rought  for  several  chattels,  an  order  of  arrest  will  not 
be  vacated  because  the  plaintiff  has  no  cause  of  action 
as  to  some  of  the  articles  of  the  ]>ro]»erty.      (Barnett  v. 


ACTION    TO    UEC'UVEK    A    CHATTEL.  215 

Selling,  TO  N.  Y.  492).      With  regard  to  grantiug  au 
order  of  arrest  iu  sucb  action,  see  vol.  I,  p.  489,  et  scq. 

Sec.    2.    Pleadings  and  proceedings. 

The  ruk^s  with  respect  to  these  matters  are  the  same 
in  this  action  as  in  any  other  action,  except  so  far  as 
they  may  be  limited  b}^  those  sections  of  the  code  which 
are  quoted  below. 

Nothing-  iu  title  2  of  chapter  XIV  of  the  code  is  to  be 
so  coustrued  as  to  prevent  the  plaintiff  from  uniting  in 
the  same  complaint  two  or  more  causes  of  action,  in  any 
case  specified  in  section  484  of  the  code.  (Co.  Civ. 
Proc.  §  1G89). 

The  complaint,  in  this  action,  is  not  required  to  be  in 
an^'  specific  form.  The  only  requirement  in  reference  to 
it  is  the  general  one  that  it  shall  contain  a  plain  and 
concise  statement  of  the  cause  of  action.  [Western 
R.  R.  Co.  V.  Bayne,  75  N.  Y.  1).  It  must  show  that  the 
plaintiff  has  a  right  to  the  immediate  possession  of  the 
property.      ( Scofield  v.  Whitelegge,  49  N.  Y.  259 ) . 

An  allegation,  in  a  pleading  interposed  by  either 
party,  to  the  effect  that  the  party  pleading,  or  a  third 
person,  w^as,  at  the  time  when  the  action  was  com- 
menced, or  the  chattel  was  replevied,  as  the  case  may  be, 
the  owner  of  the  chattel,  or  that  it  was  then  his  prop- 
erty, is  a  sufficient  statement  of  title,  unless  the  right 
of  action  or  defense  rests  upon  a  right  of  possession,  by 
virtue  of  a  special  property;  in  which  case,  the  pleading 
must  set  forth  the  facts,  upon  which  the  special  prop- 
erty depends,  so  as  to  show,  that  at  the  time  w^hen  the 
action  was  commenced,  or  the  chattel  was  replevied,  as 
the  case  may  be,  the  party  pleading,  or  the  third  person, 
w^as  entitled  to  the  possession  of  the  chattel.  (Co.  Civ. 
Proc.  §  1720). 

AMiere  the  complaint  contains  a  sufficient  statement 
of  the  plaintiff's  title,  a  general  allegation,  that  the  de- 
fendant wrongfully  took  the  chattel,  is  sufficient,  with- 
out setting  forth  the  facts,  showing  that  the  taking  was 
wrongful.  Where  the  taking  of  the  chattel  is  not  com- 
plained of,  but  the  action  is  founded  upon  its  w^rongful 
detention,  the  complaint  must  set  forth  the  facts,  show- 


1'  1  G  I'UACTR'E. 

iii^  that  tile  deti'Utioii  was  wi-oii^rul.       (Co.  (Mv.  Proc. 

If  the  action  is  based  ou  the  wrongrul  deteutiou,  a  de- 
mand aud  refusal  must  be  alh'ucd  in  the  eomplaiut. 
{Scopcid  V.  WliiivJcijije,  suinti  ).  It  is  not  necessary  to 
alleiie  detention  of  tlu'  property  by  I  be  (b'fendant,  ex- 
cept where  the  action  is  based  on  a  wronj^ful  detention 
as  distinj^uished  from  a  wronjjifnl  taking.  yllojjinun 
V.  MurLhum,  88  llun,  ISj.  As  we  liave  seen  in  article 
1,  section  1,  sKpra^  the  action  will  lie  for  a  wrongful 
taking  even  though  the  defendant  has  not  the  chattel 
at  the  time  of  the  commencement  of  the  acticju.  It  is 
not  necessary  to  negative  in  the  complaint  the  excep- 
tions specified  in  section  lODO.  (Id.).  It  is  necessary 
that  the  value  of  the  property  should  be  found  by  the 
jury,  and,  therefore,  it  should  be  alleged  in  the  com- 
plaint. Where  the  gist  of  the  action"  is  a  wrongful  de- 
tention, it  is  only  necessary  to  allege  ownership  by  the 
plaintiff,  possession  by  the  defendant,  and  a  demand 
aud  refusal ;  the  allegation  of  ownership  imports  the 
right  of  possession.  {Grisivold  v.  Mujtniiuj,  07  App. 
Div.  372). 

>\  here  the  plaintiff  recovers  a  chattel  which  was  in- 
jured, or  otherwise  dejireciated  in  value,  while  it  was  in 
the  possession  or  under  the  control  of  the  defendant, 
under  such  circumstances,  that  the  plaintiff  might  re- 
cover damages  for  the  injury  or  dei)reciation,  in  an 
action  brought  against  the  defendant  therefor,  he  may 
recover  the  same  damages  in  an  action  brought  as  pre- 
scribed in  article  1,  title  2  of  chapter  XIV  of  the  code. 
In  that  case,  he  must  set  forth  the  facts  in  his  com- 
l)hiint,  and  deman<l  judgment  for  damages  accordingly. 
(Co.  Civ.  Proc.  §  1722).  See,  also,  as  to  section  1722, 
volume  I,  pages  400-410.  Of  course,  damages  for  de- 
preciation while  in  the  defendant's  possession,  can  be 
recovered  only  up  to  the  time  of  the  trial,  and  not  there- 
after. (Commerce  Erch.  Xaf.  Jil:  v.  lili/r,  123  N.  Y. 
132). 

The  defendant's  pleadings  are  the  same  as  in  any  other 
action. 


ACTION    TO   UECOVEU   A    CHATTEL.  217 

The  defendaut  may  by  answer  defend,  on  the  j>i()imd 
that  a  third  person  was  entitled  to  the  chattel,  without 
connecting-  himself  with  the  latter s  title.  (Co.  Civ. 
Proc.  §  1V23). 

The  rule  laid  down  in  this  section  existed  prior  to  the 
enactment  of  this  section  of  the  code,  where  the  action 
was  based  on  a  wrongful  detention,  in  which  case  title 
in  a  third  person  was  a  defense,  in  the  nature  of  things, 
to  the  plaintiff's  allegation  that  the  chattel  was  wrong- 
fully detained  from  him  {Oriffin  v.  Long  Island  R.  R. 
Co.,  101  N.  Y.  348)  ;  but  where  the  action  was  for  a 
wrongful  taking,  a  plea  that  the  title  was  in  a  third 
person  was  no  defense  unless  the  defendant  connected 
himself  with  that  title,  before  this  section  of  the  code. 
{Stoicell  V.  Otis,  71  N.  Y.  36).  Of  course,  this  specific 
provision  of  the  code  has  abrogated  the  rule  there  laid 
down.  (Htouchridge  V.  rerkliis.  111  N.  Y.  1).  The 
decision  in  (ruilford  v.  Mills  (57  Hun,  493)  seems  to 
have  been  inadvertent  and  without  the  court's  atten- 
tion being  called  to  section  1723.  The  mere  denial  of 
the  plaintiff's  title  without  more,  is  not  a  good  defense  in 
the  action.  (SicdGnhach  v.  Rilcij,  36  Hun,  211;  affd., 
Ill  N.  Y.  560),  Where  the  action  is  for  the  wrongful 
detention  of  the  property,  a  general  denial  puts  in  issue 
not  only  the  plaintiff's  property  in  the  chattel,  but  also 
the  wrongful  detention;  and  the  defendant,  under  such 
an  answer,  may  show  title  in  a  stranger,  although  he 
does  not  connect  himself  with  it.  (Griffiu  v.  Long 
Island  R.  R.  Co.,  101  N.  Y.  348). 

Where  the  defense  is,  that  a  chattel,  to  recover  which 
the  action  is  brought,  was  distrained  doing  damage,  an 
allegation  that  the  defendant,  or  the  person  by  whose 
command  he  acted,  was  then  lawfully  possessed  of  the 
real  property,  and  that  the  chattel  was  distrained,  while 
it  was  doing  damage  thereupon,  is  sufficient,  without 
setting  forth  the  title  to  the  real  property.  (Co.  Civ. 
Proc.  §1724). 

If  the  defendant  claims  damages  for  the  detention  of 
the  property  he  must  set  up  the  claim  in  his  answer,  and 
ask  for  damages  in  his  prayer  for  relief.  (Whitcomh  v. 
Hoffman,  14  Hun,  335). 


218  ruACTiCE.  ' 

The  action  is  triable  by  a  jury.  (Vol.  TI,  p.  212).  It 
is  to  be  brouj'ht  on  for  (rial  in  the  same  way  and  at  the 
same  courts  as  other  actions  which  are  trialtlc  in  that 
manner.  (Id.  p.  23o).  Where  part  only  of  several 
chattels  specitied  in  the  complaint  have  been  replevied, 
and  the  plaintitT  desires  to'abandon  so  much  of  his  claim 
as  relates  to  those  which  have  not  been  replevied,  he 
must  serve  a  notice,  the  form  and  time  of  service  of 
which  is  specitied  in  volume  II,  at  page  237.  The  notice 
which  the  defendant  must  serve  where  he  demands  judg- 
ment for  the  return  of  the  chattel  or  its  value  is  speci- 
fied in  volume  II,  at  pages  237-238. 

There  seems  to  be  a  question  whether  there  can  be  a 
receivership  in  an  action  of  replevin.  (See  Lihhy  v. 
Lihhij,  68  App.  Div.  15). 

Sec.    3.    Verdict. 

The  form  of  the  verdict,  report  or  decision  is  found  in 
volume  II,  at  pages  379-380.  The  value  at  the  time  of 
trial  must  always  be  found  and  stated  in  the  verdict. 
{Bach  v.  Tuch,  47  Hun,  536).  If  there  is  no  proof  of 
value  but  the  affidavit  made  to  take  the  property,  the 
jury  may  assess  the  property  at  the  sum  stated  in  that 
as  against  the  part}'  who  makes  the  affidavit.  {Empire 
State  Type  F.  Co.  v.  Grant,  44  II un,  434;  revd.  on  other 
grounds,  114  N.  Y.  40). 

Evidence  of  the  purchase  price,  some  two  years  prior 
to  the  trial,  with  nothing  else,  is  not  sufficient  to  enable 
a  jury  to  fix  the  value  at  the  time  of  the  trial.  {Xatl. 
Cu.sh  Rcf/ister  Co.  v.  Agnc,  43  App.  Div.  605).  The 
objection  that  the  value  at  some  time  prior  to  the  trial 
is  submitted  to  the  jury  must  be  taken  at  the  trial ;  it 
cannot  be  first  taken  on  appeal.  ( BrarJcrlcer  v. 
Schicahcland,  86  Ilun,  143;  alfd.  on  op.  below,  155 
X.  Y.  644).  Where  the  instruction  to  the  jury  is  to 
find  the  value  at  the  time  of  the  trial  and  there  is  evi- 
dence of  the  value  at  that  time,  it  will  be  presumed  on 
appeal  that  the  jury  found  the  value  at  that  time  even 
though  the  verdict  does  not  so  state.  {Tripp  v.  Smith, 
50  App.  Div.  499;  affd.  without  op.,  168  N.  Y.  655).  It 
is  not  proper  for  the  jury  in  such  a  case  to  find  a  general 


At'TIUX    TO   UIX'OVEK    A    CHATTEL.  219 

verdict  for  daniafios;  but  tliey  should  assess  the  value 
of  the  property  and  dainaj^es  for  its  deteiitiou.  {ritillips 
V.  MelriUc,  10  Hiin,  211).  As  to  the  inauner  of  assess- 
ing- damages  on  default,  see  vol.  II,  pp.  720-721. 

Sec.    4.    Judgment. 

Final  judgment  for  the  plaintiff  must  award  to  him 
possession  of  the  chattel  recovered  by  him,  with  his 
damages,  if  any.  If  a  chattel  recovered  was  not  re- 
plevied, or  if,  after  it  was  replevied,  it  was  delivered  to 
the  defendant,  or  to  a  person  not  a  party,  as  prescribed 
in  article  1,  title  2  of  chapter  XIV  of  the  code,  the  final 
judgment  must  also  award  to  the  plaintiff  the  sum 
fixed  as  the  value  thereof,  to  be  paid  by  the  defendant, 
if  possession  thereof  is  not  delivered  to  the  plaintiff.  If 
the  defendant  has  demanded  judg:ment  for  the  return  of 
a  chattel,  which  was  replevied,  and  afterwards  delivered 
to  the  plaintiff,  or  to  a  person  not  a  party,  as  prescribed 
in  article  1,  title  2  of  chapter  XIV  of  the  code,  final  judg- 
ment in  his  favor  therefor  must  award  to  him  possession 
thereof,  with  his  damages,  if  auy;  and  it  must  also 
award  to  him  the  sum  fixed  as  the  value  thereof,  to  be 
paid  by  the  plaintiff,  if  possession  is  not  delivered  to  the 
defendant.  But  if  the  case  is  one  of  those  specified  in 
section  1727  of  the  code,  final  judgment  in  favor  of  the 
defendant  must  award  to  him  the  sum,  fixed  as  therein 
specified,  and  if  it  is  not  collected,  the  delivery  of  the 
chattel ;  or,  if  the  chattel  has  not  been  replevied,  or  has 
been  returned  to  him  after  replevin,  that  he  is  entitled 
to  possession  thereof,  until  the  sum  so  awarded  is  col- 
lected, or  otherwise  paid.  The  judgnnent  may  be 
docketed,  and  the  docket  thereof  creates  a  lien,  as  if  it 
was  a  judgment  for  the  full  amount  of  the  money,  in- 
cluding costs,  which  it  awards,  either  absolutely  or  con- 
ditionally.     (Co.  Civ.  Proc.  §  1730). 

A  judgment  is  sufficient  in  form  which  substantially 
conforms  to  the  requirements  of  this  section.  ( Leiiyisohn 
V.  Ajtplc,  7  N.  Y.  St.  Kep.  223 ). 

Replevin  differs  from  other  actions  in  this  respect, 
that  the  judgment  may  be  given  as  the  rights  of  the 
parties  happen  to  be  in  respect  to  the  property  in  the 


L'1'0  i'UA('i'U"i:. 

condition,  sitiuil  ion  oi-  s(;il  ns  lli;it  it  is  at  tlic  time  of  the 
trial  and  tlic  i-cndition  of  tlic  jnd.umcnt.  {  A  ucrhdc/i  v. 
M<irl:.s,  It)  I)aly,  171  I.  Jndjiiiicnt  may  he  cntci-cd  in  ilic 
action  altliouiiii  the  jni-y  has  not  assessed  any  (lamaues 
or  found  the  value  of  the  property.  In  that  case  the 
judi>nient  would  simply  aw  aid  the  property  to  the  plain- 
tiff, and  if  the  return  of  the  property  ccuihl  not  l)e  thus 
obtained,  the  judiiuient  would  he  unavailable.  {Htnii- 
III oik/  v.  Morgan,  101  X.  Y.  17J)).  The  failure  to  assess 
the  dania<;es  in  such  a  case  is  a  bar  to  any  other  action 
to  recover  the  value,  in  case  the  execution  for  the  return 
of  the  chattel  is  unavailing-.  {Braicncr  v,  Fahy,  64 
Api).  Div.  122).  If  the  chattel  has  been  delivered  to 
the  plaintiH',  he  must  take  judgment  for  its  return,  and 
not  for  the  valne  of  the  property.  {RockwvU  v.  Saun- 
ders, 10  Barb.  473).  If  the  propei'ty  has  not  been  de- 
livered to  the  plaintiff,  he  cannot  take  judgment  for  its 
value  simply,  but  he  must  take  it  in  the  alternative,  as 
required  by  tlie  section  above  cited.  Xo  other  form  of 
judgment  is  authorized.  (Fit.zhugJi  v.  Winian,  9  X.  Y. 
559;  Wood  v.  Orser,  25  N.  Y.  348). 

Judgment  for  the  value  alone  would  be  irregular. 
[r/iillip.s  V.  Mclrillc,  10  Hun,  211).  So  wliere  the  de- 
fendant who  has  demanded  a  return,  succeeds  in  the 
action,  when  the  property  has  been  delivered  to  tlie 
plaintiff,  he  must  take  judgment  in  the  alternative,  for 
the  return  of  the  property  or  for  the  value  thereof  as 
assessed,  in  case  the  return  cannot  be  had  (Difif/ht  v. 
Enos,  9  X^.  Y.  470;  Glaiui  v.  Yonuylove,  27  Barb.  480)  ; 
although  the  plaintiff  has  parted  with  the  property. 
{Cochran  v.  Goitirald,  41  X.  Y.  Super.  Ct.  Kep.  317). 
If  a  defendant  who  has  not  claimed  title,  succeeds  in 
the  action,  the  judgment  should  be  a  dismissal  of  the 
complaint.  {XicJioIs  v.  I'olt.s,  35  Misc.  273).  But  in 
a  case  falling  within  the  provisions  of  subdivision  2  of 
section  1727,  where  the  defendant  is  an  unpaid  bailee 
for  hired  work  on  a  chattel,  the  judgment  shouhl  fix  the 
value  of  the  work  and  direct  that,  if  such  sum  be  not 
collected,  the  chattel  should  be  delivered  to  the  bailee, 
even  though  no  demand  under  section  1725  has  been 
served  by  such  defendant.       {McCohh  v.  Christiansen, 


ACTION    TO    RECOVER    A   CHATTEL.  221 

28  Misc.  119;  see,  also,  C/iri^ikiii^cii  v.  Mciidhain,  45 
App.  Div.  551).  Of  course  a  defendant  can,  under  any 
circumstances,  recover  only  for  the  property  actually 
received  by  the  plaintiff  under  the  writ.  (Leach  v. 
WUliams,  12  App.  Div.  173).  If  a  proper  verdict  has 
been  found  by  the  jury,  or  a  proper  judgment  has  been 
directed  in  the  decision,  a  failure  to  enter  judgment  in 
accordance  with  it  is  a  mere  irregularity,  and  may  be 
amended  (Ingersoll  v.  Bostirick,  22  N.  Y.  425;  Youiifj  v. 
At  wood,  5  Hun,  234)  ;  but  if  the  judgment  has  been 
directed  by  the  court  for  the  value  of  the  property,  when 
it  should  be  in  the  alternative,  no  other  judgment  can 
be  entered;  and  it  will  be  error  for  which  the  judgment 
will  be  reversed.  {Dtcight  v.  Eiios,  9  N.  Y.  470 K  If 
the  plaintiff  has  a  lien  upon  the  property  by  virtue  of 
which  he  brings  the  action  and  the  defendant  is  not  the 
general  owner,  the  plaintiff  is  entitled  to  judgment  for 
the  return  of  the  property  or  for  its  value.  [Do its  v. 
Rush,  28  Barb.  157).  If,  however,  the  defendant  is  the 
general  owner,  a  proper  judgment  in  such  case  to  be 
entered  for  the  plaintiff,  is  that  he  shall  have  a  return 
of  the  property,  or  its  value,  and  the  value  should  be 
assessed  at  the  amount  of  the  plaintiff's  lien,  and  his 
damages.  (Allen  v.  Judsoii,  71  N.  Y.  77).  If  there  are 
several  defendants,  judgment  may  direct  the  Teturn  to 
such  as  are  entitled  to  it,  and  refuse  it  to  those  who  are 
not.  (Wofjdhiirii  v.  Chamherlain,  17  Barb.  446). 
Ordinarily  a  defendant  cannot  have  judginent,  upon  the 
dismissal  of  the  complaint,  that  the  property  should  be 
returned  to  a  co-defendant.  (See  Hheehan  v.  Golden, 
85  Hun,  462;  Oppenhchn  v.  Leicis,  20  App.  Div.  332; 
appeal  dismissed,  159  N.  Y.  530).  If  any  damages  are 
given  for  the  detention,  the  interest  allowed  by  section 
1235  of  the  code  (vol.  II,  p.  695)  must  be  added  to  the 
sum  which  the  plaintiff  should  recover,  if  the  return  of 
the  property  cannot  be  had.  (Munsell  v.  Flood,  46 
N.  Y.  Super.  Ct.  Rep.  134).  Where  the  action  is 
brought  to  recover  two  or  more  chattels,  and  the  verdict, 
report  or  decision  has  awarded  to  one  party  one  or  more 
distinct  chattels  which  can  be  identified,  and  the  residue 
to  the  other  party,  a  final  judgment  rendered  thereon 


—'J  rU.U  "TICK. 

must  awai'd  (ocacli  [)artv  the  same  i-clii'f  willi  icspcct  to 
the  findinji  in  liis  I'avoi*,  as  if  I  lie  Jiidonu'iit  were  a  sep- 
arate judjiiiHMit  in  liis  favor;  except  that  whei-e  each 
party  is  entith'd  to  the  absolute  award  «)f  a  sum  of 
mouey  against  the  other,  the  smaller  sum  must  be  de- 
ducted from  the  greater  and  the  balance  only  must  be 
awarded  in  the  judgment.      (Co.  Civ.  i'roc.  §  1728). 

As  to  the  costs  in  these  actions,  see  vol.  II,  p.  545. 
As  to  what  must  be  put  into  the  ju<lgment-roll,  see  vol. 
II,  p.  683.  As  to  the  form  and  manner  of  issuing  execu- 
tion, see  vol.  II,  pp.  987-988. 


ARTICLE  III. 

TAKING    THE   PROPERTY. 
SECTION. 

1.  When  the  property  may  be  taken. 

2.  Aflidavit  and  requisition. 

3.  Undfrtaking  by  plaintiff. 

4.  Remedies  for  defective  papers. 

5.  How  chattel  to  be  replevied. 

6.  Custody  of  the  property  by  the  sheriff. 

7.  Exception  to  plaintifl's  sureties. 

8.  Re-delivery   of   property   to   defendant. 

9.  Justification   of   sureties. 

10.  Action  on  the  undertaking. 

11.  Claim  of  title  by  thiid  person. 

12.  Second  and  subsequent  replevin. 

Sec.    1.    When  property  may  be  taken. 

The  taking  of  the  property  into  the  possession  of  the 
sherilT  during  the  pendency  of  the  action  is  not  essen- 
tial to  entitle  the  plaintiff  to  maintain  this  particular 
action  (Co.  Civ.  Proc.  §  1718)  ;  but  the  taking  of  the 
property  is  the  particular  proceeding  which  constitutes 
the  difference  between  the  action  of  replevin  and  other 
actions  under  the  code. 

The  plaintiff  may,  when  the  summons  is  issued,  or  at 
any  time  afterwards,  and  before  the  service  of  a  copy  of 
the  defendant's  answer,  or,  where  judgTnent  is  taken  by 
default,  for  want  of  an  appearance  or  pleading,  before 


ACTION    TO   RECOVER   A    CHATTEL,  223 

the  entry  of  the  fiual  jiuli'iiieut,  cause  the  chattel,  to 
recover  which  the  actum  is  l)rought,  to  be  replevied  by 
the  sheriff  of  the  countj^  where  it  is  found.  (Co.  Civ. 
Proc.  §  1694). 

If  the  property  is  not  taken  by  the  plaintiff  until  so 
short  a  time  before  the  trial  that  the  defendant's  time  to 
reclaim  it  does  not  expire  until  after  the  trial  has  been 
had  and  judgment  entered  for  the  plaintiff,  the  defend- 
ant's right  to  reclaim  is  not  cut  off  until  after  the  de- 
cision of  an  appeal,  if  the  proceedings  on  the  judgment 
have  been  stayed.  (Corn  EjccJiangc  Bank  v.  Bhjc,  102 
N.  Y.  305).  If  the  complaint  asks  damages  instead  of 
the  possession  of  the  property,  the  plaintiff  cannot  take 
proceedings  to  replevy  the  property  pending  the  action. 
{Spalding  v.  ^imlding,  3  How.  Pr.  297;  Dows  V.  Green^ 
3  How.  Pr.  377). 

Sec.    2.   Affidavit  and  requisition. 

For  the  purpose  of  replevying  the  property  the  plain- 
tiff must  deliver  to  the  sheriff  an  affidavit  and  a  written 
undertaking  as  hereafter  prescribed,  with  the  written 
requisition  indorsed  upon  or  annexed  to  the  affidavit 
and  subscribed  by  the  plaintiff's  attorney,  to  the  effect 
that  the  sheriff  is  required  to  replevy  the  chattel  de- 
scribed therein.      (Co.  Civ.  Proc.  §  1694). 

The  affidavit,  to  be  delivered  to  the  sheriff  in  behalf 
of  the  plaintiff,  with  a  requisition  to  replevy  a  chattel, 
may  be  made  by  the  plaintiff's  agent  or  attorney,  if  the 
material  facts  are  within  his  personal  knowledge;  or  if 
the  plaintiff  is  not  within  the  county  where  the  attor- 
ney resides,  or  has  his  office,  or  is  not  capable  of  mak- 
ing the  affidavit.  Where  the  affidavit  is  made  by  an 
attorney  or  agent,  he  must  state  therein  what  allega- 
tions, if  any,  are  made  upon  his  information  and  belief; 
and  he  must  set  forth  therein  the  grounds  of  his  belief, 
as  to  all  matters  not  stated  upon  his  knowledge,  and  the 
reason  why  the  affidavit  is  not  made  by  the  party  or  the 
claimant.     (Co.  Civ.  Proc.  §  1712). 

The  affidavit,  to  be  delivered  to  the  sheriff,  as  pre- 
scribed in  section  1694,  must  particularly  describe  the 


224  PKACTK'i:. 

chattel  to  be  I'v^plevied ;  and  must  contain  tlic  following- 
alle<iatious: 

1.  That  the  plaintilt"  is  the  owner  of  the  chattel,  oi- 
ls entitled  to  the  possession  thereof,  l»_v  virtue  of  a 
special  property  therein;  the  facts  with  respect  to  which 
must  be  set  forth. 

2.  That.it  is  wrou<^fullY  detained  by  the  defendant. 

3.  The  alle<»ed  cause  of  the  detention  thereof,  accord- 
inf-  to  the  best  knowledge,  information,  and  belief  of  the 
pers(m  making  the  affidavit. 

4.  That  it  has  not  been  taken  by  virtue  of  a  warrant, 
against  the  plaintiff,  for  the  collection  of  a  tax,  assess- 
ment, or  tine,  issued  in  pursuance  of  a  statute  of  the? 
state,  or  of  the  United  States;  or,  if  it  has  been  taken 
under  color  of  such  a  Avarrant,  either  that  the  taking 
was  unlawful,  by  reason  of  defects  in  the  i)rocess,  or 
other  causes  specified,  or  that  the  detention  is  unlawful, 
by  reason  of  facts  specified,  which  have  subsequently 
occurred. 

5.  That  it  has  not  been  seized  by  virtue  of  an  execu- 
tion or  warrant  of  attachment,  against  the  property  of 
the  plaintilT,  or  of  any  person  from  or  through  whom 
the  plaintiff  has  derived  title  to  the  chattel,  since  the 
seizure  thereof;  or,  if  it  has  been  so  seized,  that  it  was 
exempt  from  the  seizure,  hy  reason  of  facts  specitied, 
or  that  its  detention  is  unlawful,  by  reason  of  facts 
specified  which  have  subse(|ueutly  occurred. 

G.   Its  actual  value.      (Co.  Civ.  Proc.  §  1095). 

The  affidavit  only  protects  the  sheriff  in  taking  the 
pro]>erty  which  is  s])ecified  in  it.  (BiiUis  v.  Mont- 
(joiiicrij,  50  N.  Y.  352).  For  this  reason  the  descrip- 
tion should  be  particular  aild  exact,  and  such  that  there 
can  be  no  difficulty  in  ascertaining  from  it  the  particu- 
lar chattels  which  are  sought  to  be  replevied.  An  affi- 
davit which  described  two  hundred  doz^n  shirts  and 
drawers  or  thereabouts,  and  forty  dozen  jackets  more 
or  less,  does  not  describe  the  property  in  a  manner  re- 
quired by  law.  (Talcott  v.  Bclding,  36  N.  Y.  Super. 
Ct.  Rep.  84).  An  affidavit  specifying  "all  the  dry 
goods,  notions,  carpets,  wall  paper,  ci-ockery,  boots  and 
shoes,  groceries,  fixtures,  safe  and  personal  effects  of 


ACTION    TO    KECOVEU    A    CHATTEL.  225 

P.  &  B.  ill  the  B.  Block,"  is  sufficient.  { McCarthy  v. 
Ockcrniaii,  154  N.  Y.  505).  The  description  shoiihl  he 
such  that  a  person  not  an  expert  woiiUl  know  what  was 
meant.  {\<iii  Di/hc  v.  N.  Y.  ^^tatc  Ban  Icing  Co.,  l.s 
Misc.  661).  As  to  what  is  a  sufficient  description  of 
lumher,  see  ISIoan  v.  Iniplcinent  Dealers  Mfcf.  Co.  (25 
Misc.  451).  It  is  impossible  to  set  forth  the  various 
descriptions  that  have  been  held  sufficient  and  insuffi- 
cient. The  following-  cases,  in  addition  to  those  above 
cited,  deal  with  the  subject  under  varying  states  of 
facts:  ISlatl.  EnatneVing,  etc.,  Co.  v.  KaphDi  (53  App. 
Div.  96),  Schick'tcr'uH/  v.  RotlischUd  (2G  App.  Div. 
614),  and  Marshall  v.  FrUnd  (33  Misc.  443;  atfd.  with- 
out op.,  59  App.  Div.  628).  If  the  form  of  the  prop- 
erty which  is  sought  to  be  replevied  has  been  changed 
after  the  taking  by  defendant,  and  before  the  commence- 
ment of  the  action,  the  affidavit  should  describe  the 
property  as  it  exists  when  the  affidavit  is  made;  and 
the  fact  that  it  has  been  changed  into  the  form  described 
should  be  stated ;  as  if  logs  Avrongfully  taken  by  the 
defendant  have  been  sawed  into  boards,  the  property 
should  be  described  as  boards,  and  the  fact  that  it  has 
been  sawed  should  be  mentioned. 

Where  the  affidavit  describes  two  or  more  chattels  of 
the  same  kind,  it  must  state  the  number  thereof,  and 
where  it  describes  a  chattel  in  bulk,  it  must  state  the 
weight,  measurement,  or  other  quantity.  (Co.  Civ. 
Proc.  §  1697). 

When  the  plaintiff  claims  to  be  the  general  owner  of 
the  property,  the  affidavit  is  sufficient  if  it  states  simply 
that  he  is  the  owner  of  the  property,  without  setting 
up  the  facts  which  show  such  ownership.  (Burns  v. 
J^ohhins,  1  Co.  Rep.  62;  Vandenhiirf/h  v.  Tan  ValJccn- 
hurgh,  8  Barb.  217).  But  if  the  plaintiff  is  a  special 
owner,  it  is  not  sufficient  merely  to  state  that  fact;  he 
must  state  the  facts  in  respect  to  such  special  property, 
so  that  the  court  can  say  that  upon  those  facts  a  special 
property  and  right  of  possession  is  made  out ;  and  Avhere 
the  evidence  of  the  facts  relied  on  rests  in  a  writing,  the 
Avriting  should  be  set  out  as  the  basis  of  the  conclusion 
15 


22G  ruA(Ti("E. 

that  the  special  i)r(>iHM'tv  exists.  {Dcpcir  v.  Leul,  2 
Abh.  Pr.  131  ).  11"  tlu*  facts  as  stated  do  not  show  the 
tith'  which  the  phiiutitt'  aUejics,  the  allhhivit  is  (h'fcci  ivc, 
and  the  takinu'  will  he  set  aside.  {JJoiiald  v.  h'ocLirrll, 
V.)  Wk.  Di.ii.  11)2). 

^^  here  the  affidavit  is  made  after  the  service  of  the 
snnini((ns,  the  alienations,  recjnired  to  be  inserted 
therein  by  snbdivisit)ns  1  and  2  of  section  101)5  mnst 
be  to  the  effect,  that  the  plaintilf,  at  the  time  of  the 
commencement  of  the  action,  was  the  owner  of  the  chat- 
tel, or  was  entitled  to  the  possession  thereof  by  virtne  of 
a  special  property  therein ;  and  that  it  was  then  wrong- 
fully detained  by  the  defendant,  as  prescribed  in  those 
subdivisions.       (Co.  Civ.  Proc.  §  IGOG). 

If  a  demand  and  refusal  are  necessary  to  make  out 
the  plaintiff's  cause  of  action,  the  demand  must  be  made 
before  the  affidavit  is  sworn  to,  and  the  fact  of  the  de- 
mand and  refusal  must  be  stated  in  the  affidavit. 
(McAdatn  v.  WuJhrau,  8  Civ.  Proc.  Rep.  451).  If  the 
action  is  brought  to  recover  property  taken  on  execu- 
tion, for  the  reason  that  it  is  exempt,  the  affidavits 
should  state  the  fact  showing:  the  exemption.  (Spnld- 
iiHj  V.  SpaldiiHj,  3  How.  31)7;  Co.  Civ.  Proc.  §  101)5, 
subd.  5).  If  the  action  is  brought  to  recover  property 
taken  by  the  collector  and  trustee  of  a  school  district 
under  a  warrant  against  the  plaintitt"  for  the  collection 
of  a  scli<K)l  tax,  it  is  not  sufficient  (within  subdivision 
4  of  section  101)5)  to  allege  in  the  affidavit  that  the  tax 
was  unlawful  by  reason  of  defects  in  the  process,  "  the 
said  tax  containing  moneys  t(>  be  raised  thereby  which 
were  not  legally,  properly  and  justly  chargeable  to  said 
district."  {Xorri.s  y.  drnics,  HI  llun,  304).  The  actual 
value  of  the  property  and  no  more  should  be  stated  in 
all  cases,  as  the  affidavit  is  evidence  of  the  value  against 
the  person  making  it  (IJiiipirc  HI  ate  Tijpc  F.  Co.  v. 
Grant,  44  Ilun,  434;  revd.  on  other  grounds,  114  N.  Y. 
40)  ;  and  the  value,  as  stated  in  the  affidavit,  fixes  the 
amount  in  which  subseiiuent  undertakings  should  be 
given. 

Where  the  affidavit  describes  two  or  more  chattels  to 
be  replevied,  it  may,  at  the  election  of  the  plaintiff,  state 


ACTION    TO   RECOVER    A    CHATTEL,  227 

the  ag-gregate  value  of  all;  oi-,  se])ai-ately,  the  value  ol" 
any  chattel  or  of  auy  chiss  of  chattels,  and  the  aggre- 
gate value  of  the  remainder,  if  any.  (Co.  Civ.  Proc 
§  1697).  ' 

Where  an  agent's  affidavit  is  made  positively,  and  not 
on  information  and  belief,  and  alleges  that  he  had  per- 
sonal knowledge  of  the  transactions  involved,  it  is  suffi- 
cient; there  are  not  the  same  stringent  requirements  as 
to  such  affidavits  showing  the  facts  upon  which  such 
knowledge  is  based  as  in  affidavits  on  attachments. 
i^Sloan  V.  Implement  Dealer)^  Mfg.  Co.,  25  Misc.  451). 
An  agent's  affidavit  alleging  the  incorporation  of  the 
defendant  and  the  cause  of  the  detention  on  inf(H'mation 
and  belief,  is  sufficient.  ( Id. ).  Where  the  plaintiff  is  a 
corporation,  an  affidavit  by  its  treasurer  is  sufficient. 
(Xutl.  EiiamcUng,  etc.,  Co.  v.  Kaiiliin,  53  App.  Div.  90). 

The  requisition  may  be  directed  to  the  sheriff  of  a 
particular  count}',  or  generally  the  sheriff  of  any  county 
where  the  chattel  is  found.  It  is  deemed  a  mandate  of 
the  court.  (Co.  Civ.  Proc.  §  1G94).  The  affidavit  and 
requisition  are  in  the  nature  of  a  process.  {O'RelUij  v. 
Good,  42  Barb.  521  ).  The  duty  of  the  officer  is  to  ex- 
ecute it,  if  it  is  valid  upon  its  face;  and  he  has  no  au- 
thority to  go  behind  it  {Second  Nat.  Bank  of  Oswego  v. 
Dunii,2  Civ.  Proc.  Rep.  259;  affd.,  97  N.  Y.  149)  ;  and 
it  is  a  protection  to  him  if  he  takes  the  propertj^  de- 
scribed in  it  from  the  actual  possession  of  the  defendant 
or  his  agent,  although  in  fact  it  belongs  to  a  third  per- 
son. (Man mug  v.  Keenan,  73  N.  Y.  45).  But  the  affi- 
davit and  requisition  are  no  protection  to  the  officer 
if  he  takes  other  property  than  that  described  in  it,  or 
if  he  takes  the  property  from  the  possession  of  persons 
other  than  the  defendant  or  his  agent.  (BuUis  v.  Mont- 
gomerg.  50  N.  Y.  352;  Otis  v.  Williams,  70  N.  Y.  208). 

Sec.    3.    Undertaking  by  plaintiff. 

The  plaintiff  must  deliver  to  the  sheriff  a  written 
undertaking  at  the  same  time  with  the  affidavit  and 
requisition."     (Co.  Civ.  Proc.  §  1694). 

The  undertaking  to  be  delivered  to  the  sheriff,  with  a 
requisition  to  replevy  a  chattel,  must  be  executed  by  at 


228  I'K.UTICK. 

least  two  sureties,  who  iimst  he  ajun-oved  h\  the  sheriff. 
It  must  he  to  the  effect,  that  the  sureties  are  hound  in  a 
speeitied  sum,  ii(»f  h'ss  than  twice  tlie  value  of  the  chat- 
tel, as  stated  in  tiie  affidavit,  for  the  pi-osecution  of  the 
actiou;  for  the  return  of  the  chattel  to  the  defendant,  if 
possession  thereof  is  adjud^ycd  to  him,  or  if  the  action 
ahates,  or  is  discontinued,  hefore  the  chattel  is  returue«l 
to  the'defendant;  and  for  the  payment  to  the  defendant 
of  any  sum,  which  the  judgment  awards  to  him  against 
the  plaintitt".      (Co.  Civ.  Proc.  §  1G90). 

No  consideration  need  be  expressed  in  the  undertak- 
ing. No  other  consideration  is  necessary  to  support  it 
than  the  fact  that  the  claim  is  made.  {Hurnmii  v. 
Utlcij,  0  llun,  505).  The  general  re(|uisites  of  the  un- 
dertaking are  found  stated  in  volume  1,  p.  297,  ct  acq. 
In  the  undertaking  to  he  given  in  this  ])roceeding,  two 
sureties  are  reciuired  by  the  statute.  The  party  cannot 
be  one  of  them.  {Burns  v.  Rohbins,  1  Co.  Kep.  62). 
Any  objection  to  the  sureties  is  waived  by  failure  to 
except  to  them.  (Co.  Civ.  Proc.  §  1703).  As  to  such 
exception,  see  section  7  {infra). 

No  other  undertaking  than  that  prescribed  in  this  sec- 
tion is  provided  for,  however  inadecjuate  that  may  be 
{DeRcgiiie  v.  Lcicis,  3  Robt.  708),  as  where  the  plaintiff 
has  understated  the  value  of  the  chattel  in  his  affidavit 
(Id.;  U.  H.  Land  cG  Investment  Co.  v.  Basseij,  53  Ilun, 
516),  and  even  if  one  of  the  sureties  on  such  an  under- 
taking has  become  insolvent,  the  court  has  no  authority 
to  direct  the  plaintiff  to  give  a  fresh  undertaking. 
{Hohen  stein  v.  West  minster  Candle  Co.,  31  App.  Div. 
11).  The  approval  of  the  court  is  not  necessary  to  the 
undertaking.  The  approval  of  the  sheriff  is  a  minis- 
terial act  which  he  is  required  to  do  for  his  own  pro- 
tection only;  but  still  he  cannot  arbitrarily  refuse  to 
do  it  (Xosser  v.  Corn-in,  36  How.  Pr.  540)  ;  and  if  he. 
did  so  refuse  he  would  probably  be  liable  for  any  injury 
which  might  result  to  the  i)laintiff  for  such  refusal.  If 
not  so  approved,  the  i)roceedings  will  be  set  aside  on 
motion;  but  upon  the  motion  the  court  may  allow  the 
approval   to  be  endorsed   mine  pro  tune.       {Burns  v. 


ACTION    TO    RECOVEK   A   CHATTEL.  229 

Robhins,  1  Co.  Kep.  ()2).  There  is  no  differenee,  in 
legal  effect,  between  the  la  nonage  of  section  1699,  re- 
quiring the  undertaking  to  be  for  the  payment  of  any 
sum  which  "  the  judgment  awards,"  and  that  used  in 
sections  two  hundred  and  nine  and  two  hundred  and 
eleven  of  the  code  of  procedure,  providing  for  the  pay- 
ment of  such  sum  "  as  may  for  any  cause  be  recovered;" 
both  cover  costs ;  and  an  undertaking  in  the  latter  form 
is  sufficient  under  the  present  statute.  {John  Church 
Co.  v.  Dorseij,  38  Misc.  542). 

Sec.    4.   Remedies  for  defective  papers. 

If  the  affidavit,  or  requisition,  or  undertaking  is  de- 
fective, the  remedy  is  by  motion  to  set  aside  the  pro- 
ceedings. (American  Tool  Co.  v.  iimith,  32  Hun,  121; 
affd.  without  op.,  90  N.  Y.  670;  Dcpew  v.  Lcul,  2  Abb. 
Pr.  131).  ^o,  if  the  property  has  been  taken  from  the 
defendant  in  a  case  not  allowed  by  law,  as  when  it  ap- 
pears that  the  property  had  been  originally  taken  for  a 
tax,  the  defendant  may  procure  the  proceedings  to  be 
set  aside  on  motion.  {O'Reilly  v.  Good,  42  Barb.  521). 
The  manner  of  making  the  motion  and  the  requirement 
of  the  motion  papers  is  stated  in  volume  I,  pages  245, 
262,  798,  et  seq.  Any  irregularity  relied  on,  such  as  the 
failure  of  an  agent  to  state  in  the  affidavit  made  by  him 
the  grounds  of  his  belief  as  required  by  section  1712,  or 
an  insufficient  description  of  the  chattels  in  the  affidavit, 
must  be  specified  in  the  notice  of  motion.  {Van  Dijke 
v.  A',  y.  Htate  Banking  Co.,  18  Misc.  661).  A  motion 
to  set  aside  the  proceedings  must  be  made  promptly; 
and  it  will  be  denied  if  unnecessarily  delayed  (Ethridge 
V.  Orcutt,  12  N.  Y.  St.  Rep.  372),  as  where  made  after 
the  time  to  answer  had  expired.  {Paddock  v.  Guyder, 
8  N.  Y.  8upp.  905;  s.  (\,  29  N.  Y.  St.  Rep.  773).  A  gen- 
eral appearance  after  the  taking  of  the  property  waives 
any  irregularity  in  the  affidavit  or  the  papers  on  which 
the  property  is  taken.  {Hyde  v.  Patterson,  1  Abb.  Pr. 
248).  So,  giving  an  undertaking  and  obtaining  a  re- 
delivery of  the  property  is  a  waiver  of  any  irregularity 
in  the  taking.  {Wisconsin  M.  &  F.  Ins.  Co.  Bank  v. 
Hohhs,  22  How.  Pr.  494,  500). 


230  »         riiACTici;. 

On  tlu'  molioii  lo  vacate,  llic  court  iiiav  allow  an 
anicndnic'Ut  of  the  jkiimm-s  lo  be  made  u^ion  terms,  i  1  au 
J)i//iC  V.  A.  )'.  Sliilc  HtnikiiH/  Co.,  supra;  'I'ltoin  v. 
Luzunis,  31)  Apj).  J>iv.  7A)S). 

Sec.    5.    How  chattel  to  be  replevied. 

If  auY  chattel,  described  in  the  attidavit,  is  found  iii 
the  possession  of  tlie  defendant,  or  (d"  his  a«;(*nt,  the 
sheriff,  to  whom  an  affidavit,  requisition  and  undertak- 
ing are  delivered,  as  presciil>ed  in  the  forej^oini'  sections 
of  this  article,  must  forthwith  i('i)levy  it,  by  takin<i  it 
into  his  possession,  lie  must  thereupon,  without  (hday, 
serve  on  the  defendant  a  co])y  of  the  affidavit,  re(|uisi- 
tion,  and  undertakinj^,  b\  deliverin,i>  the  same  to  iiim 
f)ersonally,  if  he  can  be  found  within  the  county;  or,  if 
he  cannot  be  so  found,  to  his  aijent,  if  any,  from  whose 
]>ossession  the  chattel  is  taken;  (u-  if  neither  can  be 
found  within  the  county,  by  leaving  the  copy  at  the 
usual  place  of  abode  of  either,  with  a  person  of  suitable 
age  and  discretion.      (Co.  Civ.  Proc.  §  ITOO"). 

The  sheriff  must  replevy  a  smaller  number  or  a 
smaller  (juantity,  if  the  whole  of  the  chattel  or  chattels 
desciibed  in  the  affidavit  cannot  be  found.  (Co.  Civ. 
Proc.  §  1698). 

If  any  chattel,  described  in  the  affidavit,  is  secured 
or  concealed  in  a  building  or  inchtsure,  the  sheriff  must 
publicly  demand  its  delivery.  If  it  is  not  delivered, 
pursuant  to  the  demand,  he  must  cause  the  buihling  or 
inclosure  to  be  broken  open,  and  must  take  the  chattel 
into  his  ])ossession.       (Co.  Civ.   IM-oc.  v:^  1701). 

To  what  extent  the  afti<lavit  and  recpiisition  which 
operate  as  a  process  ]>rotect  the  officer,  see  section  2, 
supra.  He  can  only  take  the  i)roperty  from  the  posses- 
sion of  the  defendant  or  his  agent  (O/Z-s  V.  MUVhuus,  70 
N.  Y.  208)  ;  and  he  has  no  authoi-ity  to  take  the  prop- 
erty from  a  third  person  who  is  not  a  i)arty  to  the  action 
if  he  is  actually  in  pcissession  of  it,  although  such  prop- 
erty may  be  the  ])art  icular  ))ro])(M'ty  desci-ibed  in  the 
affidavit.      (Stimpsoii  v.  h'ti/iiohls.  14  I>ai-b.  500). 

The  "public  demand,"  re(|uired  by  section  1701  be- 
fore breakiuii  into  a  buildiui*,  does  not  necessarilv  mean 


ACTION    TO    !M:('0\'EU    A    CHATTEL.  231 

readinj^-  aloud  a  list  of  the  articles  t(j  be  taken;  the  pur- 
pose of  the  reqiiireiiieiit  was  to  prevent  an  unnecessary 
forcible  entrance,  and  it  is  to  be  reasonably  construed. 
{Bone  V.  Ojjcr,  50  Hun,  559). 

Sec.    6.    Custody   of  the  property  by  the   sheriff. 

A  slier itf,  who  has  replevied  a  chattel,  must  retain  it 
in  his  possession,  keepinji  it  in  a  secure  place,  until  the 
person,  who  is  entitled  to  the  possession  thereof,  is 
ascertained,  as  prescribed  in  article  1  of  title  2  of  chap- 
ter XIV  of  the  code,  lie  must  then  deliver  it  to  that 
person,  upon  request  and  payment  of  his  lawful  fees, 
and  necessary  expenses  for  takini>-  and  keeping-  it,  as 
taxed  by  a  judge  of  the  court,  or  the  county  judge  of  the 
county  where  the  chattel  was  replevied,  upon  such  a 
notice  as  the  judge  deems  proper.  (Co.  Civ.  Proc. 
§  1T02). 

The  sheriff  is  a  bailee  of  the  property  for  hire,  and  is 
bound  to  ordinary  diligence.  It  is  his  duty  to  take  such 
steps  to  insure  its  safety  as  a  careful  and  prudent  man 
of  good  sense  and  judgment  would  take  in  the  particu- 
lar case  if  the  property  belonged  to  him.  {Moore  v. 
Wester relt,  27  N.  Y.  234).  He  has  a  special  property 
in  the  goods,  which  will  enable  him  to  insure  them. 
( Wh lie  v.  Madhou,  26  N.  Y.  117 ) .  Where  a  chattel  has 
been  replevied  by  the  sheriff  and  is  in  his  possession,  it 
cannot  be  levied  upon  by  virtue  of  an  execution  in  the 
action  {First  Nat.  Bl\  of  Osicego  v.  Dunn,  97  N.  Y. 
149 },  nor  can  it  be  taken  under  a  requisition  in  another 
replevin  action.  {MrCdrthij  v.  Ockennan,  154  N.  Y. 
565).  He  may  leave  the  property  where  he  finds  it  in 
charge  of  a  deputy,  if  no  objection  is  made  to  that 
course.  He  must  retain  the  property  at  least  three  days 
after  taking  it,  and  until  the  sureties  justify,  if  they  are 
excepted  to ;  and  if  he  delivers  it  before  that  time  to 
either  party  he  takes  the  risk  of  the  justification. 
{Graham  y' Wells,  18  How.  Pr.  376). 

While  the  amount  to  be  awarded  a  sheriff'  as  com- 
pensation for  his  trouble  in  taking  and  keeping  the 
property  is  discretionary  with  the  judge  acting  undci' 
section  1702,  as  is  also  the  manner  of  ascertaining  how 


232  I'UACTUK. 

laiicli  tlijif  coiiiiM'Usal  ion  should  !»(>,  vci  llici-c  iimsl  he 
some  h'liJil  i)roof  u|»(»ii  which  (he  Judiic  can  ad  ;  he  can- 
not tix  an  ai-hitarv  sum,  oi*  act  njton  his  o\\  n  judunicnt. 
{\csl(,r  V.  ni.sclio/f,  lua  N.  V.  .~)lTi. 

When  the  chattel  is  delivered  l»v  I  he  slierilf  to  eilhci- 
party,  as  ])rescrihed  in  this  section,  the  sheriff  ceases  to 
he  responsihle  for  the  sulliciencv  of  the  sureties  of  either 
party;  until  then,  he  is  responsihle  for  the  sutlicieucy  of 
the  sureties  of  the  plaintiff  or  of  the  (h-feiidant,  as  the 
case  may  he.      {Co.  (Mv.  Proc.  §  170(>). 

The  sheriff's  liahility  to  the  defendant  hej»ins  with  the 
takin<i-  of  the  i)roperty  descrilx^l  in  the  altidavit;  and  it 
continues  until  the  expiration  of  the  thi-ee  days  within 
which  the  defendant  must  except  to  the  plaintiff's  sure- 
ties. If  no  exc(^])tion  is  taken,  his  liahility  to  the  de- 
fendant is  then  at  an  end.  If,  however,  the  defendant 
excepts  to  the  sureties  in  proper  time,  the  sheriff's  lia- 
hility to  him  continues  until  the  time  for  justification  is 
ended. 

If  the  defendant  neither  excepts  to  the  plaintiff's 
sui-eties,  nor  rcMpiires  the  return  of  the  chattel,  within 
tlu'  time  prescrihed  for  that  purpose;  or  if  he  makes 
default  in  serving  notice  of  the  justification  of  his  sure- 
ties, or  in  procurinji"  the  allowance  of  his  undertaking; 
or  if  the  i)la..intitf,  after  the  defendant  has  excepted  to 
his  sureties,  duly  procures  the  allowanci-  of  his  under- 
taking; the  sheriff  must,  except  in  the  case  s])ecified  in 
section  1701)  of  the  code,  immediately  delivei-  the  chattel 
to  the  plaintiff.  If  the  ]»laintirf,  after  the  defendant 
has  excepted  to  his  sureties,  makes  default  in  serving- 
notice  of  justification,  or  in  procuring  the  allowance  of 
his  undertaking;  or  if  the  defendant,  after  he  has  re- 
<|uii'e(l  the  return  of  the  chatted,  duly  procures  the  allow^- 
ance  of  his  undertaking;  the  sheritf  must  immediately 
deliver  the  chattel  to  the  defendant.  (Co.  Civ.  Proc. 
§  ITOr,). 

By  the  section  just  (iuote<l,  the  sheritf  is  required  to 
retain  the  property  until  the  justilication  of  the  sureties, 
if  they  are  excei>ted  to;  and  the  case  of  H ofJir'niicr  v. 
('(imphrll  (59  N.  Y.  209),  is  overruled  upon  that  point. 
If  the  defendant  procures  a  return  of  a  part  of  the  chat- 


ACTIOxN    TO   RECOVER   A    CHATTEL.  233 

tels  which  had  been  taken  as  provided  in  section  1697, 
the  remainder  must  be  delivered  to  the  plaintiff,  except 
as  otherwise  prescribed.      (Co.  Civ.  Proc.  §  1697). 

A  sheriff,  who  delivers  to  either  part^-,  without  the 
consent  of  the  otliei',  a  chattel  replevied  by  him,  except 
as  piescribed  in  section  1706,  or  by  virtue  of  an  execu- 
tion issued  upon  a  judgment  in  the  action,  forfeits,  to 
the  i)arty  aggrieved,  two  hundred  and  fifty  dollars;  and 
is  also  liable  to  him  for  all  damages  which  he  sustains 
thereby.  ( Co.  Civ.  Proc.  §  1707 ) .  The  words  "  either 
party,"  used  in  this  section,  mean  the  plaintiff  or  the 
defendant,  and  a  complaint  alleging  that  the  sheriff  de- 
livered the  chattel  to  soms  unknown  person,  does  not 
state  a  cause  of  action  under  this  section.  {Albanij 
Belting,  etc.,  Co.  v.  Grell,  67  App.  Div.  81).  He  is 
liable,  however,  in  such  a  case,  for  the  damages  sus- 
tained by  the  plaintiff  thereby.      (Id. )• 

Where  the  sheriff  duly  delivers  a  chattel  to  either 
party,  as  prescribed  in  section  1706,  he  must,  at  the 
same  time,  deliver,  to  the  adverse  party,  the  undertak- 
ing, received  by  him  from  the  party  to  whom  the  chattel 
is  delivered,  together  with  the  examination  of  the  sure- 
ties, and  the  judge's  allowance,  if  any.  (Co.  Civ.  Proc. 
§  1T08). 

The  sheriff  must,  within  tAventy  days  after  he  has  de- 
livered a  chattel  replevied  by  him,  to  the  party  entitled 
to  the  possession  thereof,  or  to  a  third  person,  as  pre- 
scribed in  this  article,  file  with  the  clerk  the  plaintiff's 
affidavit,  and  the  accompanying  requisition,  with  a  re- 
turn, stating  in  what  manner  he  has  executed  the  latter. 
If  he  has  omitted  to  replevy  a  part  of  the  chattel,  or  of 
two  or  more  chattels,  described  in  the  aflfldavit,  the  re- 
turn must  state  the  cause  of  the  omission.  (Co.  Civ. 
Proc.  §  1715). 

If  the  sheriff  fails  to  comply  with  section  1715,  either 
party  may  require  him  so  to  do,  within  ten  days  after 
service  of  a  notice  to  that  effect,  or  to  show  cause,  at  a 
term  of  the  court  designated  in  the  notice,  why  he 
should  not  be  punished  for  a  contempt  of  the  court. 
The  notice  may  be  served  at  any  time  before  final  judg- 
ment, except  that  it  cannot  be  served  on  the  part  of  the 


234  PRACTICE. 

defeiitlaut,  before  auswer.  Au  omission  to  ('oiiii)ly  with 
such  a  notice  is  punishable  as  a  contempt  of  the  court. 
(Co.  Civ.  Proc.  §  ITU)). 

Sec.    7.    Exception  to  plaintiff's  sureties. 

Within  tliree  (hiys  after  the  ciiattel  is  repk'vied,  and  a 
copy  of  tlie  aflidavit,  requisition,  ami  undertalcing-  is 
served,  the  defendant,  unk^ss  he  re(|uires  a  return  of  the 
<hattel  replevied,  or  of  one  or  nioie  of  them,  where  two 
or  more  chattels  are  replevied,  may  serve  upon  the 
sheriff  a  notice,  that  he  excepts  to  the  plaintiff's  sure- 
ties; otherwise  he  is  deeme*!  to  have  waived  all  objec- 
tions to  them.  >\'liere  the  defendant  has  not  appeared, 
the  notice  must  be  subscribed  either  by  him,  or  by  his 
ajji^ent  or  attorney.  The  person  so  subscribinj^  the 
notice  must  add  to  his  signature  his  ofltice  address,  as 
prescribed  by  law,  with  respect  to  a  notice  of  appear- 
ance. Within  ten  days  after  service  of  such  a  notice, 
the  plaintiff's  attorney  must  serve  upon  defendant's 
attorney,  or,  if  the  defendant  has  not  appeared,  upon 
the  sheriif,  notice  of  the  justification  of  the  sureties. 
If  the  notice  of  justification  is  served  upon  the  sheriff, 
he  must  immediately  serve  it  upon  the  person,  whose 
name  is  subsci-ibed  to  the  notice  of  exception,  in  the 
mode  prescribed  by  law,  for  service  of  a  paper  upon  an 
attorney  in  an  action.      (Co.  Civ.  Pi'oc.  §  1703). 

Before  the  code  of  civil  procedui'e,  it  had  been  held 
that  if  the  defendant  excei)ted  to  the  plaintiff's  sureties, 
he  lost  his  right  to  the  return  of  the  property,  although 
the  sureties  did  not  justify.  {Cullcn  v.  Miller.  5  Abb. 
N.  C.  282).  This  rule  has  been  changed  by  section  1706 
of  the  code,  siipm.  As  to  the  manner  of  justifica- 
tion see  section  9,  infra. 

Sec.    8.    Re-delivery  of  property  to   defendant. 

The  defendant,  if  he  does  not  except  to  the  plaintiff's 
sureties,  as  prescribed  in  section  1703,  may,  within  the 
time  allowed  to  him  for  such  an  exception,  serve  upon 
the  sheriff,  a  notice  that  he  re(]uires  a  return  of  th? 
chattel  replevied.  With  the  notice,  he  must  deliver  to 
the  sheriff  the  following  papers: 


AC'TIUX    TO    RECOVER    A    CHATTEL.  235 

1.  An  affidavit,  coutaiuiuj^  an  allegation,  either  that 
the  defendant  is  the  owner  of  the  chattel,  or  that  he  is 
lawfully  entitled  to  the  possession  thereof,  hy  virtue  of 
a  special  property  therein,  the  facts  with  respect  to 
which  must  be  set  forth. 

2.  An  undertaking,  executed  by  at  least  two  sureties, 
to  the  effect  that  they  are  bound,  in  a  specified  sum,  not 
less  than  twice  the  value  of  the  chattel,  as  stated  in  the 
affidavit  of  the  plaintiff,  for  the  delivery  thereof  to  the 
plaintiff,  if  delivery  thereof  is  adjudged,  or  if  the  action 
abates  in  conse(iuence  of  the  defendant's  death ;  and  for 
the  payment  to  him  of  any  sum,  which  the  judgment 
awards  against  the  defendant. 

Within  three  days  after  serving  a  notice,  requiring  a 
return  of  the  chattel,  as  prescribed  in  this  section,  the 
defendant  must  serve  upon  the  plaintiff's  attorney, 
notice  of  the  justification  of  the  sureties  to  the  under- 
taking.     (Co.  Civ.  Proc.  §  1704). 

Where  the  affidavit  states  separately  the  value  of  one 
or  more  chattels  or  classes  of  chattels,  the  defendant 
may  require  the  return'  of  any  or  all  of  the  chattels  or 
classes  of  chattels,  the  value  of  which  is  thus  stated,  or 
of  the  portion  thereof  which  has  been  replevied.  (Co. 
Civ.  Proc.  §  1607). 

When  the  sheriff  has  replevied  less  than  the  whole  of 
the  chattels  described  in  the  affidavit,  if  the  aggregate 
value  only  is  stated  in  the  affidavit,  the  value  of  the 
entire  chattel  or  class  of  chattels,  as  so  stated,  is  to  be 
deemed  the  value  of  the  part  replevied,  for  the  purpose 
of  the  proceedings  to  procure  a  return  thereof  to  the 
defendant.      (Co.  Civ.  Proc.  §  1698). 

The  right  of  the  defendant  to  reclaim  the  chattels  is 
not  cut  off  by  a  delay  of  the  plaintiff  in  taking  them 
until  shortly  before  the  trial  of  the  action.  (Corn  E.r- 
chaiKje  Bank  v.  BJjic  102  N.  Y.  305).  If  the  defendant 
claims  a  special  property  in  the  chattels  by  virtue  of 
which  he  takes  them,  he  must  set  forth  the  facts  which 
will  enable  the  court  to  say  that  he  has  such  property. 

The  affidavit,  to  be  delivered  to  the  sheriff,  either  in 
behalf  of  the  defendant,  with  a  notice  that  he  re(]uir('S 
the  return  of  the  chattel,  or  in  behalf  of  a  person,  not  a 


-3()  lMtA(   TICK. 

|>ai-lv,  who  iiiiikcs  a  claiiii  as  |>ics(ril)(Ml  in  section  1701>, 
may  lie  made  l>y  an  auciil  or  alloriicy,  if  the  iiiaU'i-ial 
facts  arc  williin  his  }»cisoiial  know  h '(!<:,(',  or  if  the  dc- 
fciidant  or  chiiiiiaiil,  as  Ihc  case  iiiav  be,  is  not  witliiii 
the  county  where  the  i)i-o[)erty  was  replevied,  and 
ca])ahh'  of  niakiiiii  the  afli<hi\it.  W  here  (he  alTtiilavit  is 
made  by  an  attorney  or  aj^enl,  he  must  state  therein 
what  allejjjations,  if  any,  are  made  upon  iiis  information 
and  belief;  and  he  must  set  foi-th  thei-ein  the  jurounds  of 
liis  btdief,  as  to  all  matters  not  stated  ui)on  his  knowl- 
educ,  and  the  reason  w  hy  the  aftiihn  it  is  not  made  by  the 
party  or  the  claimant.      (Co.  (Mv.  IM-oc.  §  1712). 

If  sevei-al  chattels  are  described  in  the  aflidavit,  but 
only  their  a.i><>Te<;ate  value  is  stated,  the  undertaking^  of 
the  defendant  must  be  in  double  tin'  value  stated  in  the 
attidavit;  although  not  all  of  them  are  replevied.  But 
the  sureties  will  not  Ik*  liable  for  articles  which  were 
not  replevied;  it  is  proper  in  sn<-h  a  case  to  insert  in 
the  undertaking  a  recital  that  the  plaintiff  had  caused 
part  only  of  the  property  to  be  replevied.  (  W'chbrr  v. 
Mamie,  22  Abb.  N.  ('.  151  ;  s.  c,  unsatisfactorily  re- 
p(u*ted,  42  Hun,  557;  revd.,  105  X.  Y.  627).  It  is  not 
necessary  that  the  undertaking  should  contain  a  recital 
that  the  property  sought  to  be  retui-ned  is  the  pro])erty 
mentioned  and  described  in  the  plaintiff's  affidavit;  if 
there  is  no  such  recital,  it  is  notice  to  the  plaintiff  that 
the  defendant  intends  to  litigate  not  only  the  title,  but 
also  the  identity,  of  the  pro])erty.  (Rouse  v.  Haas,  26 
App.  Div.  171).  Where  the  undertaking  does  contain 
such  a  recital,  the  defendant  is  estopped  from  denying 
that  he  had  possession  of  the  property,  or  any  part 
thereof,  at  the  time  of  the  commencement  of  the  action, 
or  from  showing  that  it  was  different  or  other  property 
than  that  described  in  the  plaintiff's  affidavit.  (Mar- 
tin  V.  (Jilherf,  110  N.  Y.  29S).  The  court  has  power, 
how(»ver,  to  allow  an  undei-taking  containing  such  an 
admission  to  be  amende<l  in  that  respect.  {Dale  V.  (7/7- 
hert,  128  N.  Y.  625).  The  undertaking  operates  as  an 
estoppel  to  the  extent  above  stated  although  it  is  not 
signed  by  the  defendant.  (Xoirell  y.  Gilhert,  40  Hun, 
489).      By  giving  the  undertaking  the  defendant  does 


ACTION    TO    UEC'OVEU    A    CHATTEL.  2o  < 

not  estop  himself  from  sb()wiii«'  that  the  plaintiff  has 
no  cause  of  action  against  him.  [Vhurch  v.  Frost,  3 
T.  &  C.  318).  The  defendant  can  take  no  objection  to 
the  regularity  of  the  taking  Uy  the  ])iaintiff  after  giving 
an  undertaking  and  obtaining  a  redelivery  of  the  prop- 
erty. (Wisconsin  J/,  d-  F.  Ins.  Co.  Bl.y.  IJohhs,  22 
How.  Pr.  494).  An  undertaking  by  the  defendant  is 
valid,  although  made  in  form  to  the  plaintiff.  (I^Iack 
V.  Heath,  4  E.  D.  Smith,  95).  An  undertaking  to  pay 
such  sum  "as  may  for  any  cause  be  recovered"  (the 
language  of  the  code  of  procedure)  is  equivalent  to  an 
undertaking  to  pay  an^-  sum  "  v^hich  the  judgment 
awards."  (John  ChiircJi  Co.  v.  Dorscy,  38  Misc.  542). 
An  affidavit  of  justitication  of  the  defendant's  sureties 
need  not  be  delivered  to  the  sheriff;  the  only  require- 
ment of  the  statute  is  that  the  sureties  should  justify 
in  the  proper  manner.  (Craiit  v.  Booth,  21  How.  Pr. 
354).  Under  certain  circumstances,  such  as  the  insol- 
vency of  the  original  defendant  and  an  intention  on  his 
part  not  to  defend  the  action,  the  sureties  will  be  al- 
lowed to  come  in  and  defend  the  action.  (Boessneck  v. 
Bab,  27  Misc.  379).  Where  replevied  property  has  been 
delivered  to  the  defendant,  upon  his  compliance  with 
the  statutory  requirements,  and  depreciates  while  in 
his  custody,  the  plaintiff,  ultimately  succeeding,  may 
recover  damages  for  such  depreciation  up  to  the  time 
of  the  trial  (Co.  Civ.  Proc.  §  1722;  Brewster  v.  aS'«7//- 
mait,  38  N.  Y.  423),  but  not  for  depreciation  occurring 
after  that  time,  as  during  the  pendency  of  an  appeal. 
(Commerce  Exch.  Nat.  Bk.  v.  Bhje,  123  N.  Y.  132). 

Sec.    9.    Justification  of  sureties. 

The  justification  of  sureties,  as  prescribed  in  sections 
1703  and  1704  must  take  place,  either  in  the  county 
Avhere  the  chattel  was  replevied,  or  in  the  county  where 
one  of  the  sureties  resides.  The  provisions,  regulating 
the  justification  (tf  bail,  contained  in  article  3  of  title  1 
of  chapter  VII  of  the  code,  govern,  except  as  otherwise 
expressly  prescribed  in  article  1,  title  2  of  chapter  XIV 
of  the  code,  with  respect  to  the  notice  of  justification 
of   the   sureties;    the   officer    before   whom    they   must 


238  PUACTK  'K. 

justify;  the  substitution  of  new  sMictics  or  a  new  iin- 
(IcrtaUiuii ;  the  cxjniiinMtioii  and  (|ualiticati<)n  of  llic 
snrclirs;  and  the  Jillowancc  of  liic  iindcriakin^.  I>nt 
aflci-  the  allowance,  the  unchM'takini;-  and  examination 
must  be  delivered  to  the  sheritf.  ( Co.  Civ.  Proc.  § 
1  TO.") ) . 

The  i-e(|uiremeuts  of  the  statute  re^nulatiug  the  justiti- 
cation  of  bail  are  found  at  vol.  I,  p.  525,  et  seq. 

Sec.    10.    Action   on  the   undertaking. 

A  plaintiff  who  has  recovered  a  final  judgment  cannot 
maintain  an  action  ajiainst  the  sureties  in  an  undertak- 
in<i-,  given  in  behalf  of  the  defendant  to  procure  a  return 
of  the  chattel,  or  against  the  bail  of  a  defendant,  who 
has  been  arrested,  until  after  the  return,  wholly  or 
partly  unsatisfied  or  unexecuted,  of  an  execution  in  his 
favor  for  the  delivery  of  the  possession  of  the  chattel, 
or  to  satisfy  a  sum  of  money  out  of  the  proi)erty  of  the 
defendant,  or  for  both  purposes,  as  the  case  requires. 
A  defendant,  who  has  recovered  a  final  judgment,  can- 
not maintain  an  action  against  the  sureties  in  the  plain- 
tilT's  undertaking,  given  to  procure  a  replevin,  until 
after  a  like  return  of  a  similar  execution  against  the 
plaintiff.      (Co.  Civ.  Proc.  §  1733). 

In  such  an  action  against  the  sureties,  the  sheriff's 
return  of  the  execution  is  presumptive  evidence  of  a 
failure  to  deliver,  or  to  return  a  chattel,  or  to  pay  a 
sum  of  money,  according  to  the  terms  of  the  undertak- 
ing.     (Co.  Civ.  Proc.  §  1734). 

It  is  not  a  defense  to  such  an  action,  that  the  chattel 
was  injured  or  destroyed,  after  it  was  replevied,  unless 
the  injury  or  destruction  was  affected  by  the  act,  or  with 
the  consent  of  the  plaintiff  in  the  action,  or  occurred 
after  the  chattel  was  taken  by  virtue  of  the  execution. 
(Co.  Civ.  Proc.  §  1735). 

It  is  no  defense  to  the  action  brought  on  the  undertak- 
ing that  the  x)roperty  is  so  situated  that  it  cannot  l)e 
reached  by  the  sheriff.  (Harrison  v.  Willin,  78  N.  Y. 
31)0).  It  is  no  defense  that  the  sureties  on  a  plaintiff's 
undertaking  fail  to  justify  upon  being  required  to  do 
so,   as   the  justification   is   for  the  protection   of   the 


ACTION    TO   RECOVER   A   CHATTEL.  239 

opposite  party,  and  he  waives  an  objection  to  it  by  suing 
on  the  bond.  {Dcclrr  v.  Andemon,  39  Barb.  340). 
The  sureties  on  a  plaintiff's  undertaking  containing  the 
usual  recitals  of  such  an  instrument,  are  estopped  to 
deny  that  proceedings  were  actually  taken  to  replevy 
the  property.  {EarrisotL  v.  Wilkin,  69  N.  Y.  412). 
The  legality  of  the  proceedings  and  the  right  of  the 
plaintitf  to  sue  in  the  original  action,  and  all  matters 
which  were  decided  in  that  action  cannot  be  disputed 
in  the  action  on  the  undertaking.  (Auerbach  v.  ^Jarks, 
12  Wk.  Dig.  155;  Loaiurs'  Bank  v.  Jucohy,  10  Hun,  143; 
^Jack  V.  Heath,  4  E.  D.  Smith,  95;  Christiansen  v.  Mend- 
ham,  45  App.  Div.  554).  In  an  action  against  the  sure- 
ties on  an  undertaking,  whether  of  the  plaintiff  or  de- 
fendant, it  must  be  alleged  and  shown  that  possession 
of  the  chattel  was  taken  by  virtue  of  the  undertaking. 
(Fettit  V.  Allen,  64  App.  Div.  579;  Barton  v.  Donnelly, 
6  Misc.  473;  O'ConneU  v.  KelUj,  15  Daly,  513).  In  an 
action  to  recover  a  chattel,  the  cause  of  action  survives 
or  continues,  notwithstanding  the  death  of  either  party, 
in  favor  of,  or  against  his  executor  or  administrator. 
Where  the  court  makes  an  order,  directing  the  abate- 
ment of  such  action,  as  prescribed  in  section  761  of  the 
code,  an  action  may  be  maintained,  upon  an  undertak- 
ing, given  for  the  purpose  of  procuring  a  delivery  or 
return  of  a  chattel,  as  if  final  judgment,  awarding  to 
the  adverse  party  possession  thereof,  had  been  rendered 
in  the  first  action,  and  an  execution  thereupon  had  been 
returned  unexecuted  and  unsatisfied,  except  that  dam- 
ages cannot  be  recovered  therein  for  a  wrongful  taking, 
withholding  or  detention.  An  action  to  recover  the 
chattel  cannot  be  maintained,  after  an  action  has  been 
commenced  upon  an  undertaking,  as  prescribed  in  this 
section.      (Co.  Civ.  Proc.  §  1736). 

Sec.    11.    Claim  of  title  by  third  person. 

At  any  time  before  a  chattel,  which  has  been  replevied, 
is  actually  delivered  to  either  party,  if  a  person,  not  a 
party  to  the  action,  claims,  as  against  the  defendant,  a 
right  to  the  possession  thereof,  existing  at  the  time 
when  it  was  replevied,  an  affidavit  may  be  made  and 


240  rK.uTU'K. 

dt'livi'red  to  the  shi'i-il'l'  in  liis  bcliall',  siatiiij;  tliat  he 
makes  siieb  a  ehiim;  specifyiujj;  the  chattel  or  chattels  to 
whicli  it  relates,  if  two  or  more  chattels  have  Ih'cm  ic 
plevied,  aud  the  claim  relates  only  to  part  of  them;  and 
setting;-  forth  the  facts  upon  which  his  right  of  possession 
depends.  In  that  case,  Uie  shei-ilf  may,  in  his  disci'etioii, 
before  he  delivers  the  chattel  to  the  plaiutiif,  serve  upon 
the  plaintiff's  attorney  a  copy  of  the  affidavit,  with  a 
notice  that  he  re(itiires  indemnity  a.i;ainst  the  claim.  If 
the  indemnity  is  not  furnished,  within  a  reasonable  time 
after  the  plaintiff  becomes  entitled  to  the  delivery  of  the 
chattel,  the  sheriff  may,  in  his  discretion,  deliver  it  to 
the  claimant,  without  incurring  any  liability  to  the 
plaintiff",  by  reason  of  so  doing.     (Co.  Civ.  Proc.  §  1709). 

The  affidavit  provided  for  in  this  section  may  be  made 
by  the  agent  or  attorney  of  the  owner  of  the  property; 
but  when  made  by  the  agent  or  attorney  he  must  state 
therein  what  allegations  if  any  are  made  upon  his  in- 
formation and  belief;  and  he  must  state  therein  the 
grounds  of  his  belief  as  to  all  matters  not  stated  on  his 
knowledge,  and  the  reason  why  the  affidavit  is  n(»t  made 
by  the  claimant.     (Co.  Civ.  Proc.  §  1712). 

It  seems  that  a  third  person,  claiming  chattels  re- 
plevied, is  not  confined  to  the  procedure  outlined  in 
section  1709;  he  may  apply  under  section  452  of  the 
code  to  be  made  a  party  defendant  (Standard  Heiciiuj 
Machine  Co.  v.  Bcijnian,  25  Misc.  429),  although  he  can- 
not be  so  brotight  in  against  his  will.  ( Goldstein  v. 
Sliapiro,  85  App.  Div.  83).  Aside  from  such  a  method, 
the  only  method  a  third  party  has  of  laying  claim  to 
the  goods  or  chattels  that  have  been  replevied  is  that 
]>rescribed  by  section  1709.  (McCarthy  v.  Oclycrnian, 
154  N.  Y.  565).  The  case  of  Fraclit  v.  Gimri  (69  App. 
Div.  396),  does  not  seem  consonant  with  the  McCarthy 
case,  which  is  not  cited.  The  claim  under  this  section 
may  be  made  at  any  time  before  the  actual  manual 
delivery  of  the  property.  (Second  ]\'at.  Bank  of  Osiref/o 
v.  Dunn,  2  Civ.  Proc.  Pep.  259).  The  claim  must  be 
one  which  existed  when  the  sheriff'  took  the  property. 
(Id.;  First  Nat.  Bank  of  Osircf/o  v.  />inni,  97  N.  V.  149, 


ACTION    TO    UECOVEll    A    CHATTEL.  241 

158).  This  section  only  applies  wheu  property  belong- 
iuj^'  to  a  third  party  is  takeu  from  the  defeudaut  or  his 
agent.  {Kiiiy  v.  Orscr,  4  Duer,  431;  Einstein  v.  Dunn, 
61  App.  Div.  195;  aftd.  ou  op.  below,  171  N.  Y.  648; 
Leonard  v.  Buttling,  19  Misc.  219).  The  service  of  the 
affidavit  aud  the  notice  of  the  claim  on  the  person  in 
charge  of  the  office  of  the  sheriff  or  coroner,  who  has 
taken  the  property  is  sufficient.  [Manning  v.  Kcenan, 
73  N.  Y.  45).  The  officer  is  primarily  bound  by  his  pro- 
cess to  keep  the  property,  or  deliver  it  to  the  plaintiff. 
The  service  of  the  affidavit  and  notice,  however,  sus- 
pends that  obligation  and  releases  him  from  it  unless 
indemnity  is  given;  when  given,  the  obligation  again 
attaches,  and  the  claim  of  the  person  entitled  to  the 
property  is  valid,  the  officer  being  required  to  rely  upon 
the  indemnity.  (Planning  v.  Kecnan,  snpra).  It  is  not 
necessary  to  call  a  sheriff's  jury  to  decide  upon  the  title 
to  the  property  in  such  cases.  {Haskins  v.  Kelly,  1 
Robt.  160). 

The  indemnity,  to  be  furnished  to  the  sheriff  by  the 
plaintiff,  as  prescribed  in  section  1709,  must  consist  of  a 
written  undertaking  to  him,  executed  by  at  least  two 
sureties,  to  the  effect  that  they  will  indemnify  him 
against  any  liability  for  damages,  costs,  or  expenses,  to 
be  incurred  in  an  action  brought  against  him  by  the 
claimant,  or  a  person  deriving  title  from  or  through  the 
claimant,  by  reason  of  the  taking  or  detention  of  the 
chattel,  or  its  delivery  to  the  plaintiff,  not  exceeding  a 
sum,  to  be  specified  in  the  undertaking,  which  must  be 
at  least  five  hundred  dollars,  and  not  less  than  the  actual 
value  of  the  chattel  claimed,  and  tAvo  hundred  and  fifty 
dollars  in  addition  thereto.  Each  of  the  sureties,  be- 
sides possessing  the  other  qualifications  required  by 
law,  must  be  a  freieholder  or  a  householder  of  the 
sheriff's  county.  The  sheriff',  before  delivering  the  chat- 
tel, may  require  the  persons  offered  as  sureties  to  sub- 
mit to  an  examination,  before  the  officer  who  takes  the 
acknowledgment  of  the  undertaking,  as  where  persons 
are  offered  to  him  as'  bail  upon  an  arrest.  The  sureties 
ai'e  entitled  to  be  substituted  as  defendants  in  an  action, 
16 


241*  I'UACTRE. 

brought  as  presnihcd  in  section  1710,  as  if  llic  chattel 
had  been  levied  upon  bv  virtue  of  an  execution.  (Co. 
Civ.  Proc.  §  1711). 

The  shei-ilf  cannot  compel  the  iudeniuitors  to  be  sub- 
stituted uuder  this  section ;  it  is  at  their  election  whether 
they  shall  be  substituted  or  not.  [Leonard  v.  linttlliuj, 
13  App.  l)iv.  17D). 

A  person,  not  a  party  to  the  action,  who  ha«  served  an 
affidavit  as  prescribed  in  section  1701),  may  maintain 
an  action  against  the  sheriff,  who  has  delivered  tlie  chat- 
tel to  the  plaintiff  to  recover  his  damages,  by  reason  of 
the  taking,  detention,  or  delivery  of  the  chattel.  But 
the  summons  in  such  an  action  must  be  issued  within 
three  months  after  the  deliver}-  of  the  chattel  to  the 
plaintiff,  and  must  be  served  witliin  three  months  after 
it  is  issued.  An  action  cannot  be  maintained  against 
a  sheriff,  by  a  person  so  entitled  to  make  a  claim,  except 
as  prescribed  in  this  section.     (Co.  Civ.  Proc.  §  1710). 

The  service  of  the  affidavit  and  notice  of  claim  is  a 
sufficient  demand  to  enable  a  third  person  to  maintain 
an  action  when  he  becomes  entitled  to  do  so.  {Manning 
V.  Keenan,  73  N.  Y.  45). 

Sec.    12.    Second  and  subsequent  replevin. 

Where  the  sheriff  has  replevied  a  part  only  of  a  chat- 
tel, or  of  two  or  more  chattels,  described  in  the  plain- 
tiff's affidavit,  and  has  served  upon  the  defendant  the 
papers  required  upon  such  a  replevin,  the  plaintiff  may, 
at  any  time  before  the  service  of  a  copy  of  the  defend- 
ant's answer,  or  before  judgment  by  default,  for  want 
of  an  appearance  or  pleading,  require  the  same  or  any 
other  sheriff,  to  replevy  any  other  part  thereof.  For 
that  ])uri)ose,  he  must  deliver  to  the  sheriff  an  affidavit, 
containing  the  same  allegations,  and  a  requisition  and 
undertaking,  with  respect  to  the  part  yet  to  be  replevied, 
as  if  the  action  was  brought  to  i^ecover  that  part  only. 
Where  a  second  or  subseciuent  I'eplevin  is  made,  as  pre- 
scribed in  this  section,  the  proceedings  are  the  same,  as 
if  a  former  replevin  had  not  been  made.  (Co.  Civ.  Proc. 
§  1T13). 


ACTION    TO   RECOVER   A   CHATTEL.  243 

There  was  no  provision  in  the  revised  statutes  for 
more  than  the  one  replevin ;  and  it  was  doubtful  whether 
the  requisition  could  be  executed  at  different  times, 
although  the  property  might  consist  of  numerous 
articles,  some  of  which  could  not  immediately  be  found. 
In  the  former  action  of  replevin  the  writ  could  have  been 
executed  at  different  times,  but  the  proceedings  there- 
under must  have  been  completed  before  the  return  day ; 
otherwise  alias  or  plurics  writs  would  have  been  issued. 
{Loicrey  v.  Ma )is field,  3  How.  Pr.  88).  This  section  regu- 
lates the  proceedings  under  the  first  requisition,  where 
the  articles  have  not  been  all  taken  at  one  time,  and  pro- 
vides a  substitute  for  alias  or  pluries  writs.  It  may 
sometimes  be  necessary  to  amend  the  complaint  if  a 
second  replevin  is  resorted  to ;  but  the  general  provisions 
relating  to  pleadings  suffice  for  that  purpose.  The  de- 
fendant's pleadings  are  rarely  to  be  disturbed,  as  the 
new  requisition  must  be  delivered  to  the  sheriff  before 
answer.     ( Throop's  note  to  §  1713 ) . 


CHAPTER  LV. 

MATRIMONIAL  ACTIONS. 


ARTICLE  I..  .  .Jurisdiction  of  the  (■ourts. 

ARTICLE  II... Action   to   annul   a    marriage. 

ARTICLE  III.. Action  for  a  divorce. 

ARTICLE  IV  .  .Action  for  a  separation. 

ARTICLE  V... Custody  of  children,  and  allowances  pending  action. 


ARTICLE  I. 

JURISDICTION   OF   THE  COURTS. 

There  is  no  general  jurisdiction  in  the  courts  of  this 
state  over  the  granting  of  divorces  or  separations.  In 
Engand  until  1857  the  sole  jurisdiction  on  this  subject, 
was  in  the  ecclesiastical  courts,  and  that  jurisdiction 
did  not  extend  to  the  granting  of  divorces  a  vinculo.  In 
the  year  1857  there  was  established  in  England  a  court 
of  probate  and  divorce;  but  it  is  not  necessary  here  to 
examine  the  jurisdiction  which  was  given  to  that  court, 
or  the  practice  in  it.  The  history  of  the  jurisdiction  of 
the  court  with  reference  to  divorces  in  the  state  of  New 
York  will  be  found  given  l)y  the  chancellor  in  Biirth  v. 
Burtis  (Hopk.  Ch.  557),  and  in  GHflin  v.  Griffin  (47  N. 
Y.  134,  138).  In  1820  Chancellor  Kent  decreed  the 
nullity  of  a  marriage  on  the  ground  of  lunacy  of  one  of 
the  parties  at  the  time  it  was  alleged  to  have  been  sol- 
emnized (Wir/Jifniaii  V.  Wif/Jif}iiaii,  4  Johns.  Ch.  343); 
and  in  1825  Chancellor  Sand  ford  decreed  a  nuirriage 
void  for  fraud  in  contracting  it.  (Ferhtt  v.  Qojou,  Hopk. 
Ch.  478).  Roth  of  these  cases,  however,  were  based  on 
the  general  jurisdiction  of  the  court  of  chancery  in  cases 
of  lunacy  and  fraud,  and  not  upon  the  jurisdiction  of 
the  ecclesiastical  courts.     There  are  no  reported  cases 

(245) 


246  I'UACTUK. 

except  those  above  eiled  in  which  I  lie  comis  have  iiiKhM'- 
taken  to  auuul  the  eontiaet  of  maiiiaiic  excei»l  in  the 
eases  })i-eserihe(l  by  statute;  aud  whatever  power  in  that 
regard  they  may  have  by  virtue  of  their  general  e(]uily 
jurisdiction,  it  is  well  settled  that  they  have  uo  coiiiiiiou 
law  jurisdiction  over  the  subject  of  divorce;  and  their 
authority  in  that  regard  is  coutined  altogether  to  the 
exercise  of  such  exj)ress  and  incidental  powers  as  are 
conferred  by  the  statute.  {  /JrliCiibnich  v.  E rice nh rack, 
90  N.  Y.  456;  Lirinyston  V.  lAr'itiijston,  173  N.  Y.  377; 
Goodsell  V.  GoodscU,  82  App.  Div.  65;  Di  Lorenzo  v.  L)\ 
Lorenzo,  174  X.  Y.  467).  A  discussion  of  the  validity 
of  divorces  which  may  be  granted  by  the  courts  of  other 
states  and  upon  which  it  is  sought  to  procure  action  t«> 
be  taken  l»y  the  courts  of  this  state,  or  by  virtue  of  which 
rights  are  asserted  in  this  state,  is  not  germane  to  the 
subject  of  this  book.  Such  matters  are  controlled  en- 
tirely by  rules  of  substantive  law^ 


ARTICLE  II. 

ACTION   TO   ANNUL   A    MARRIAGE. 
SECTION, 

1.  Action  by  a  woman  married  under  the  age  of  sixteen. 

2.  Action  by  eitlier  party  to  annul  a  marriage. 

3.  Proceedings  in  the  action. 

Sec.    1.    Action  by  a  v^oman  married  under  the  age  of  sixteen. 

An  action  may  be  maintained,  by  the  woman,  to  pro- 
cure a  judgment,  declaring  a  marriage  contract  void, 
and  annulling  the  marriage,  under  the  following  cir- 
cumstances : 

1.  Where  the  plaintiff  had  not  attained  the  age  of 
sixteen  years,  at  the  time  oi  the  marriage. 

2.  Where  the  marriage  to(»k  place  without  the  consent 
of  her  father,  mother,  guardian,  or  other  person  having 
the  legal  charge  of  her  person. 

3.  Where  it  was  not  followed  l»y  consummation  or 
cohabitation,  and  was  not  ratifuMl  l)y  any  mutual  assent 


MATRIMONIAL    ACTIONS.  247 

of  the  parties,  after    the  plaintiff  attained  the  a^e  of 
sixteen  years.     (Co.  Civ.  Proc.  §  1742). 

Until  the  year  1887,  this  section,  following  the  pro- 
visions of  chapter  257  of  the  Laws  of  1841,  from  which 
it  was  taken,  authorized  an  action  to  be  maintained 
under  it,  only  Avhere  the  plaintiff  had  not  attained  the 
age  of  fourteen  years.  In  1887,  however,  it  was 
amended,  by  providing  that  the  action  might  be  main- 
tained where  the  plaintiff  had  not  attained  the  age  of 
sixteen  years.  In  the  same  year  the  legislature  changed 
the  age  of  consent,  which  at  common  law  was  fourteen 
years  for  men  and  twelve  3'ears  for  women,  and  jjrovided 
that  thereafter  it  should  be  eighteen  years  for  men  and 
sixteen  years  for  women.  ( Laws  1887,  chap.  24 ) .  In  the 
Laws  of  1841  (chap.  257),  from  which  this  section  was 
taken,  it  was  provided  that  the  action  could  be  main- 
tained by  a  woman  under  the  circumstances  mentioned 
in  this  section ;  ''where  the  marriage  was  an  offense  on 
the  part  of  the  husband  under  the  statute  and  punish- 
able according  to  law."  These  words  made  the  statute 
apply,  practically,  only  to  cases  where  the  marriage  was 
procured  hj  abduction  or  kidnapping,  or  where  the  mar- 
riage of  the  woman  was  forcibly  compelled,  so  that  it 
was  'a  misdemeanor.  Since  those  words  have  been 
omitted  in  the  code  of  civil  procedure,  there  is  practi- 
cally no  difference  between  the  provisions  of  this  section 
and  subdivision  1  of  section  1743  {infra). 

By  the  Domestic  Relations  Law  (chap.  272,  Laws 
1896),  it  is  provided  that  a  marriage  is  void,  from  the 
time  its  nullity  is  declared  by  a  court  of  competent  juris- 
diction, if  either  party  thereto  is  under  the  age  of  legal 
consent,  which  is  eighteen  years;  and  that  actions  to 
annul  a  void  or  voidable  marriage  shall  be  brought  only 
as  provided  in  the  code  of  civil  procedure.  ( The  Domes- 
tic Relations  Law,  §  4).  Although  section  1742  still 
remains  upon  the  statute  books  it  has  become  obsolete, 
and  a  fenmle  who  was  of  the  age  of  seventeen  at  the 
time  of  her  marriage  in  1902,  can  maintain  an  action 
under  section  1743  to  annul  such  marriage.  {Conte  v. 
Oonfc,  82  App.  Div.  335). 


248  ruAcTicE. 

Sec.    2.    Action   by   either   party    to    annul   a  marriage. 

An  action  luav  Itc  maintained  to  i)rocure  a  judjinicnt 
(Irclarinj;  a  niarriajic  contract  void  and  annnllinii  tlio 
niaii'iaiix'  for  eitlicr  of  the  following  causes  existing  at 
the  time  of  the  marriage: 

1.  That  one  or  both  of  the  ])arties  had  not  attained  the 
age  of  leg:al  consent. 

2.  That  the  former  hushand  oi-  wife  of  one  of  the 
parties  Avas  living,  and  that  the  mari-iage  with  the  foi-- 
mer  husband  or  wife  was  then  in  force. 

3.  That  one  of  the  parties  was  an  idiot  or  a  lunatic. 

•4.  That  the  consent  of  one  of  the  ])ai  ties  was  obtained 
by  force,  duress,  or  fraud. 

5.  That  one  of  the  parties  was  physically  incapable 
of  entering  into  the  mai-riage  state.  But  an  action  can 
be  maintained,  under  this  subdivision,  only  where  the 
incapacity  continues,  and  is  incurable.  (Co.  Civ.  Proc. 
§1743).' 

The  action  provided  for  in  this  section  may  be  brought 
by  either  party. 

A  marriage  is  absolutely  void  if  contracted  by  a  per- 
son whose  husltand  or  wife  by  a  former  marriage  is  liv- 
ing, unless  either :  1.  Such  former  marriage  has  been  an- 
nulled or  has  been  dissolved  for  a  cause  other  than  the 
adultery  of  such  i3ersonj  2.  Such  former  husliand  or 
wife  has  been  finally  sentenced  to  imprisonment  for  life; 

3.  Such  former  husband  or  wife  has  absented  himself 
or  herself  for  five  successive  years  tluMi  last  past  with- 
out being  known  to  such  person  to  be  living  during  that 
time.     (The  Domestic  Kelations  Law,  §  3). 

A  marriage  is  void  from  the  time  its  nullity  is  de- 
clared by  a  court  of  competent  jurisdiction  if  either 
party  thereto :  1.  Is  under  the  age  of  legal  consent, 
which  is  eighteen  years;  2.  Is  incapable  of  consenting  to 
a  mairiage  for  want  of  understanding;  3.  Is  incapable  of 
entering  into  the  marriage  state  fi'om  physical  cause; 

4.  Consents  to  such  mai'riage  by  reason  of  force,  duress 
or  fraud  ;  or,  5.  Has  a  husband  oi-  a  wife  by  a  former 
mari'iage  living,  and  such  former  husband  or  wife  has 
absented  himself  or  herself  for  five  successive  years  then 
last  past  Avithout  being  known  to  such  party  to  be  living 


MATRIMONIAL   ACTIONS.  249 

during  that  time.  Actiuns  to  auuul  a  void  or  voidable 
marriage  may  be  brought  0UI3'  as  provided  in  the  code 
of   civil    procedure.      (The    Domestic    Relations    Law, 

§4). 

Subdivision  1. — Because  Contracted  Before  the  Age 
OF  Legal  Consent. 

The  action  may  be  maintained  for  the  reason  that  one 
or  both  of  the  parties  had  not  attained  the  age  of  legal 
consent.     (Co.  Civ.  Proc.  §  1743,  subd.  1). 

An  action  to  annul  a  marriage,  on  the  ground  that  one 
of  the  parties  had  not  attained  the  age  of  legal  consent, 
may  be  maintained  by  the  infant,  or  by  either  parent  of 
the  infant,  or  by  the  guardian  of  the  infant's  person ;  or 
the  court  may  allow  the  action  to  be  maintained  by  any 
person,  as  the  next  friend  of  the  infant.  But  a  marriage 
shall  not  be  annulled,  at  the  suit  of  a  party  who  was  of 
the  age  of  legal  consent  when  it  was  contracted,  or  where 
it  appears  that  the  parties,  for  any  time  after  they 
attained  that  age,  freely  cohabited  as  husband  and  wife. 
(Co.  Civ.  Proc.  §  1744)'. 

The  action  can  be  brought  by  the  infant  party,  even 
though  the  marriage  was  contracted  with  the  knowledge 
and  consent  of  the  person  having  charge  of  the  j)erson 
of  the  infant  and  Avas  consummated  by  the  parties  before 
the  complaining  party  attained  the  age  of  consent. 
( Conte  V.  Conte,  82  App.  Div.  335) .  The  adultery  of  the 
infant  is  not  a  defense  to  an  action  brought  by  the 
parent.  i^Slocinn  v.  kSlocinii,  37  Misc.  143).  The 
supreme  court  has  jurisdiction,  although  both  parties 
are  non-residents,  if  the  marriage  was  contracted  in  this 
state;  and  acquires  jurisdiction  by  service  of  the  sum- 
mons by  publication.  (Becl-er  v.  Becker,  58  App,  Div. 
374 ) .  The  court  has  power  to  grant  alimony  and  a  coun- 
sel fee  in  actions  to  annul  a  marriage.  ( Hif/r/iufi  v. 
Sliarp,  164  N.  Y.  4).  The  mother  who  has  brought  such 
an  action  cannot  be  compelled  out  of  her  own  means  to 
pay  alimony  to  the  defendant  wife  or  a  counsel  fee  to 
the  wife's  attorney  (kStii'ers  v.  Wise,  18  App.  Div.  316)  ; 
nor  will  alimony  or  counsel  fees  be  granted  to  the  wife 


250  I'KACTU'E. 

in  au  iu-tiou  brouj^lit  bv  Iut  lo  auuiil  lier  iiiarriaj^e  on 
the  «»T()UU(1  of  infancy.  {Herron  v.  Herron,  28  Misc. 
323).  A  child  of  a  iiiai-riaiiv  wliich  is  aiiiiiiUcd  on  the 
ground  that  one  or  both  of  the  parties  liad  not  attained 
the  age  of  legal  consent,  is  deemed,  for  all  purposes,  the 
legitimate  child  of  both  parents.  (Co.  Civ.  Proc. 
§  1749). 

Subdivision  2. — Because  Former  Husband  or  Wife  of 
One  of  the  Parties  was  Living. 

An  action  may  also  be  maintained  because  the  f(jrm(T 
husband  or  wife  of  one  of  the  parties  was  living,  and 
the  nmrriage  with  such  former  lnisl)and  or  wife  was  then 
in  force.     (Co.  Civ.  Proc.  §  1743,  subd.  2). 

As  to  when  such  marriage  is  absolutely  void,  and 
when  void  only  from  the  time  its  nullity  is  declared  by 
the  court,  S(*e  Domestic  Relations  Law,  supra. 

An  action  to  annul  a  marriage,  upon  the  ground  that 
the  former  husband  or  wife  of  one  of  the  parties  was 
living,  the  former  marriage  being  in  force,  may  be  main- 
tained by  either  of  the  parties  during  the  lifetime  of  the 
other,  or  by  the  former  husband  or  wife.  AVhere  it  ap- 
pears, and  the  judgment  determines,  that  the  subsequent 
marriage  was  contracted  by  at  least  one  of  the  parties 
thereto  in  good  faith,  and  with  the  full  belief  that  the 
former  husband  or  wife  was  dead,  or  without  any  knowl- 
edge on  the  part  of  the  innocent  party  of  such  former 
marriage,  the  issue  of  the  subsequent  marriage,  born  or 
begotten  before  the  final  judgment,  are  deemed  for  all 
purposes  the  legitimate  children  of  the  parent  who  at 
the  time  of  the  nmrriage  was  competent  to  contract,  and 
are  entitled  to  succeed  as  such,  in  the  same  manner  as 
other  legitimate  children,  to  the  real  and  personal  estate 
of  said  parent;  and  the  issue  so  entitled  must  be  speci- 
fied in  the  judgment,  and  the  innocent  party  must  be 
awarded  their  custody,  and  he  or  she  is  entitled  to  ap- 
point a  guardian  of  their  persons  by  will.  This  section 
shall  be  construed  to  extend  to  all  cases  where  the  judg- 
ment or  decree  of  nullity  of  such  subsequent  marriage 
is  rendered  after  the  code  took  effect,  whether  such  sub- 


MATUIMUMAL    ACTIONS.  251 

sequent  marriage   was  contracted   before  or  after  the 
passage  thereof.     (Co.  Civ.  Proc.  §  1745). 

This  action  cannot  be  maintained  by  either  of  the 
parties  after  the  death  of  the  other.  {Cropsey  v.  il/c- 
Kinuey,  30  Barb.  47;  Conihs  v.  Comhs,  17  Abb.  N.  C. 
265).  Where  it  is  conceded  that  at  the  time  of  the 
second  marriage,  the  defendant  had  a  former  spouse 
living,  such  second  marriage  must  be  annulled.  (Apple- 
ton  V.  Warner,  51  Barb.  270).  But  in  such  an  action 
the  defendant  is  always  at  liberty  to  show  that  the 
alleged  first  marriage  is  void,  because  the  one  with 
whom  it  was  said  to  have  been  contracted,  had  a  hus- 
band or  wife  living  at  the  time.  The  plaintiff  cannot  in 
such  an  action,  for  the  purpose  of  invalidating  the  mar- 
riage which  is  the  subject  of  it,  attack  a  former  judg- 
ment of  divorce  procured  by  the  defendant,  because  it  is 
erroneous  or  fraudulent  or  collusive  (Buyer  v.  Heckel, 
85  N.  Y.  483)  ;  but  he  is  at  liberty  to  attack  it  by  proof 
that  the  prior  judgment  of  divorce  procured  by  the  de- 
fendant was  without  jurisdiction  and  was  therefore 
void.  (Mellen  v.  Mellen,  10  Abb.  N.  C.  329) .  An  action 
under  this  subdivision  cannot  be  maintained  for  the 
reason  that  the  defendant  was  nmrried  in  violation  of  a 
judgment  of  divorce  by  a  court  of  this  state  forbidding 
her  to  do  so  (Kerrison  v.  Kerr'ison,  8  Abb.  N.  C.  444)  ; 
if  it  appears  that  such  marriage  was  contracted  in  an- 
other state.     (Vtui  Vo(frhis  v.  BrintnaU,  86  N.  Y.  18). 

Although  the  wife  by  a  former  marriage  has  absented 
herself  for  five  successive  years,  the  second  marriage  is 
absolutely  void,  unless,  at  the  time  of  contracting  the 
second  marriage,  the  husl)and,  in  deciding  that  he.  has 
the  right  to  marry  again,  acts  as  a  reasonable  man, 
desiring  to  act  in  good  faith,  would  act  under  the  same 
circumstances.  (  GaU  v.  (Uill,  114  N.  Y.  109  ) .  Where  the 
wife  by  a  former  nmrriage  is  living  and  the  second  mar- 
riage is  voidable  only  and  not  void,  and  was  contracted 
in  entire  good  faith  by  both  parties,  the  wife  by  the 
secon<l  marriage,  upon  its  annulment,  is  not  entitled  to 
dower  in  the  real  property  owned  by  the  husband  at  the 
date  of  the  (Mitry  of  the  decree.  {Price  V.  Price,  124  N. 
Y.  589). 


252  I'KACI'ICK. 

SuiiDivisiox   3. — That   Om;   rAuiv    was  an    Idiot  or 

Llxatic. 

An  action  may  be  maiutaiiied  by  either  party  to  pro- 
cure a  jiKliiinciit  (Icrlarinii  Ihe  iiiarriau'c  coutract  voi«l 
and  annulliiii:  th«'  inai-riaiic  for  the  i-easou  that  one  of 
the  parties  was  an  idiol  or  lunatic.  (Co.  (Mv.  Proc 
§  1743,  subd.  3j. 

Tlie  Domestic  Relations  Law  dechires  a  marriage 
voidable  if  either  party  thereto  "is  incapable  of  consent- 
ing- to  a  marriage  for  want  of  undcrslanding." 

An  action  to  annul  a  mariiagc,  on  the  ground  that  one 
of  the  parties  thereto  was  an  idiot,  may  be  maintained 
at  any  time  during  the  lifelime  of  either  party,  by  any 
relative  of  the  idiot,  who  has  an  interest  to  avoid  the 
marriage.     (Co.  Civ.  Proc.  §  1T4C). 

An  action  to  annul  a  marriage,  on  the  ground  that  one 
of  the  pai'ties  thereto  was  a  lunatic,  may  be  maintained, 
at  any  time  during  the  continuance  of  the  lunacy,  or, 
after  the  death  of  the  lunatic  in  that  condition,  and 
during  the  life  of  the  other  ])arty  to  the  marriage,  by 
any  relative  of  the  lunatic,  who  has  an  interest  to  avoid 
the  marriage.  Such  an  action  may  also  be  maintained 
by  the  lunatic,  at  any  time  after  restoration  to  a  sound 
mind;  but,  in  that  case,  the  marriage  shall  not  be  an- 
nulled, if  it  appears  that  the  parties  freely  cohabited  as 
husband  and  wife,  after  the  lunatic  was  restored  to  a 
sound  mind.     ( Co.  Civ.  Proc.  §  1747 ) . 

Whei-e  no  relative  of  the  idiot  or  lunatic  brings  an 
action  to  annul  the  nuirriage,  as  prescribed  in  either 
sections  1746  or  1747,  the  court  may  allow  an  action 
for  that  ])ur))()S('  to  be  maintained,  at  any  time  during 
the  lifetime  of  both  the  parties  to  the  marriage,  by  any 
person  as  the  next  friend  of  the  idiot  or  lunatic.  But 
this  section  does  not  a])|)ly,  where  the  marriage  might 
have  been  annulled,  at  the  suit  of  the  lunatic,  as  pre- 
scribed in  section  1747.     (Co.  Civ.  Proc.  §  1748). 

In  W'ifjiitnian  v.  Wif/JituKin  (4  Johns.  Ch.  343),  juris- 
diction was  asserted  to  annul  a  marriage  because  one  of 
the  parties  was  a  lunatic,  on  the  general  principles  of 
equity,  independent  of  statute.     Idiocy  or  lunacy  must 


MATKliMOXlAL    ACTIONS.  1J53 

have  existed  at  the  time  of  the  iiiarriaiie  to  warrant  the 
court  iu  aumilliiijj;-  it.  (See  Banker  v.  Banker,  03  N.  Y. 
409;  Forman  v.  For  man,  24  N.  Y.  Siipp.  917). 

In  an  action  broni»ht  bv  a  rehitive  of  the  wife  against 
the  husband  to  annul  a  marriage  on  the  ground  of  the 
alleged  lunacy  of  the  wife,  the  wife  is  a  necessary-  part}' 
and  is  entitled  upon  her  own  application  to  be  brought 
in  as  a  party  defendant.  [Voddlngton  y.  Lamer,  75 
App.  Diy.  532). 

A  child  of  a  marriage,  which  is  annulled  on  the  ground 
of  the  idiocy  or  lunacy  of  one  of  the  parents,  is  deemed 
for  all  purposes,  the  legitimate  child  of  the  parent  who 
is  of  sound  mind.     (Co.  Oiv.  Proc.  §  1749). 

Subdivision    4. — Where    Consent   was    Obtained   by 
FoKC'E  AND  Fraud. 

An  action  may  be  nuiintained  to  procure  a  judgment 
declaring  a  marriage  contract  void  and  annulling  the 
marriage  where  it  appears  that  the  consent  of  one  of  the 
parties  was  obtained  by  force,  duress  or  fraud.  (Co. 
Civ.  Proc.  §  1743,  subd.  4). 

An  action  to  annul  a  marriage,  on  the  ground  that  the 
consent  of  one  of  the  parties  thereto  was  obtained  by 
force,  duress  or  fraud,  may  be  maintained,  at  any  time, 
by  the  party  whose  consent  was  so  obtained.  Such  an 
action  may  also  be  maintained,  during  the  lifetime  of 
the  other  party,  by  the  parent  or  the  guardian  of  the 
person  of  the  party,  whose  consent  was  so  obtained,  or 
by  an3'  relative  of  that  party,  who  has  an  interest  to 
avoid  the  marriage.  But  a  marriage  shall  not  be  an- 
nulled on  the  ground  of  force  or  duress,  if  it  appears 
that,  at  any  time  before  the  commencement  of  the  action, 
the  i)arties  thereto  voluntarily  cohabited  as  husband 
and  wife;  or  on  the  ground  of  fraud,  if  it  appears  that 
at  any  time  before  the  commencement  thereof,  the 
by  fraud  or  brought  about  by  the  terror  or  fear  of  the 
parties  voluntarily  cohabited  as  husband  and  wife,  with 
a  full  knowledge  of  the  facts  constituting  the  fraud. 
(Co.  Civ.  Proc.  §  1750). 

The  power  of  the  court  to  annul  a  marriage  procured 


254  I'li-vrTicE. 

defendant,  does  not  arise  (roiii  the  statute,  but  grew  out 
of  the  general  eijuity  powers  of  the  court.  [Fcrlut  V, 
aojon.  llo^k.  (Ml.  478).  The  faet  that  at  the  time  of  the 
marriage  the  phiiutitf  was  in  custody  on  th<^  charge  of 
being  the  putative  father  of  a  bastard  child,  and  that  he 
assented  to  the  nuirriage  with  some  reluctance,  is  not 
sufficient  duress  to  warrant  setting  it  aside.  {Jackson 
V.  Winne,  1  Wend.  47).  In  a  case  where  false  represen- 
tations had  been  made  to  a  young  girl  that  her  pai-ents 
consented,  and  where  she  did  not  undei stand  th<'  milure 
of  the  contract  of  marriage,  it  was  set  aside.  (  Moot  v. 
Moot,  37  Ilun,  288).  In  this  case,  although  the  three 
judges  of  the  general  term  who  delivered  the  opinion  of 
the  court,  agree  upon  affirming  the  judgment  setting 
aside  the  marriage,  they  were  not  agi-eed  upon  the 
grounds  upon  which  it  should  be  done.  The  marriage 
will  not  be  set  aside  for  the  fraud  of  the  husband  in  in- 
ducing the  wife  to  marry  him  by  false  representations 
as  to  his  character  and  property.  {Klein  V.  Wolfsolin, 
1  Abl).  N.  (\  134).  A  representation  by  the  husband 
that  his  former  wife  was  dead,  when  in  fact  she  was 
living  but  he  had  been  legally  divorced  from  her 
and  was  entitled  to  nmrry,  is  not  such  a  false  represen- 
tation as  would  warrant  the  court  in  setting  aside  the 
nmrriage.  {Clarke  v.  Clarke,  11  Abb.  Pr.  228 j.  The 
pregnancy  of  the  wonuin  if  not  concealed  from  the  hus- 
band is  not  such  a  fraud  as  will  annul  the  marriage 
{Barth  v.  Burth,  5  Law  Bull.  87)  ;  but  if  the  mother  in- 
duced the  man  to  marry  her  under  the  supposition  that 
the  child. might  possibly  be  his,  when  she  knew  that  it 
was  not  his  child,  but  that  of  some  other  jjerson,  such  a 
fraud  would  be  sufficient  to  authorize  the  court  to  de- 
clare the  marriage  contract  a  nullity.  {8crjtt  v.  ^cliit- 
fcldt,  5  Paige,  43).  The  marriage  will  not  be  set  aside 
for  false  representations  and  fraud  practiced  upon  the 
plaintiff,  when  he  cohabited  with  the  wife  for  two  years 
after  the  discovery  of  them.  {Mailer  v.  Mailer,  21  Wk. 
Dig.  287). 

A  decree  was  granted  where  the  man  concealed  the 
fact  that  he  was  afliicted  with  a  chronic  and  contagious 
venereal  disease  {Anonymous,  21  Misc.  765;  Svenson  v. 


MATRIMONIAL   ACTIONS.  255 

Svenson,  178  N.  Y.  54)  ;  where  a  notorious  criminal 
represented  that  he  was  an  honest,  industrious  man 
{Kcijcs  V.  Kcycs,  6  Misc.  355)  ;  and  where  the  keeper  of 
a  pool  room  made  a  like  representation.  [K'uuj  v. 
Brewer,  8  Misc.  587).  A  decree  was  denied  where  the 
woman's  ovaries  had  been  removed,  the  man  having-, 
however,  been  informed  that  she  might  not  be  able  to 
bear  children,  and  continuing  to  cohabit  after  knowl- 
edge of  the  facts  {^yendcl  v.  M'endel,  30  App.  Div.  447)  ; 
and  where  the  woman  concealed  the  fact  that  she  had 
given  birth  to  an  illegitimate  child  (Schradi/  v.  Logan, 
17  Misc.  329)  ;  and  where  the  husband  concealed  the  fact 
that  he  had  been  guilty  of  illicit  relations  prior  to  mar- 
riage. (Glean  v.  Glean,  70  App.  Div.  576).  In  Fisk  v. 
Fish-  (6  Apj).  Div.  432)  a  decree  was  denied  where  the 
woman  concealed  the  fact  that  she  had  been  married  and 
divorced,  the  court  stating  the  rule  that  no  fraud  will 
avoid  a  marriage  except  such  fraud  as  concerns  ability 
to  enter  into  the  marriage  relation  or  to  perform  its 
duties.  But  in  Di  Lorenzo  v.  Di  Lorenzo  (174  N.  Y. 
467)  the  court  held  that  a  decree  should  have  been 
granted  in  a  case  where  the  woman  exhibited  a  child  to 
the  man  and  falsely  represented  that  he  was  the  child's 
father;  the  court  establishing  the  more  liberal  rule  that 
if,  "through  misrepresentation  of  some  fact  w'hich  was 
an  essential  element  in  the  giving  of  his  consent  to  the 
contract  of  marriage  and  which  was  of  such  a  nature  as 
to  deceive  an  ordinarily  prudent  person,  plaintiff  has 
been  victimized,  the  court  is  empowered  to  annul  the 
marriage." 

In  an  action  brought  by  the  mother  of  an  infant  to 
annul  his  marriage  on  the  ground  that  his  consent 
thereto  was  obtained  by  force,  duress  or  fraud,  the  in- 
fant is  a  necessary  party  to  the  action.  (Fero  v.  Fero, 
62  App.  Div.  470). 

The  court  must,  upon  the  application  of  the  plaintiff, 
award  the  custody  of  the  children  of  a  marriage,  which 
is  annuled  on  the  ground  of  force,  duress,  or  fraud,  to 
the  innocent  parent,  unless  it  appears  that  the  latter  is 
unfit,  for  any  reason,  to  have  the  custody  of  one  or  more 
of  the  children,  in  which  case  the  court  must  give  such 


256  rRACTK'E. 

direct  ions  relatiiiji-  lliereto,  as  the  interests  of  the  child 
or  children  reciuire.  The  judj^nient  may  make  provision 
for  tlie  edncation  and  maintenance  of  the  children,  «)nt 
of  the  property  of  the  guilty  parent.  (Co.  Civ.  Proc. 
§  1T51). 

Subdivision  5. — Fou  Impotency. 

An  action  may  be  maintained  to  procure  a  judgment 
declaring  a  marriage  contract  void,  and  annulling  the 
marriage,  for  the  reason  that  one  of  the  parties  was 
physically  incapable  of  entering  into  the  marriage  state. 
But  an  action  can  be  maintained  under  this  subdivision 
only  where  the  incapacity  continues  and  is  incurable. 
(Co.  Civ.  Proc.  §  1743,  subd.  5). 

An  action  to  annul  a  marriage,  on  the  ground  that 
one  of  the  parties  was  physically  incapable  of  entering 
into  the  marriage  state,  may  be  maintained  by  the  in- 
jured part}^  against  the  party  whose  incapacity  is 
alleged;  or  such  an  action  nuu'  be  maintained  by  the 
party  who  was  incapable  against  the  other  party,  pro- 
vided the  incapable  part}'  was  unaware  of  the  inca- 
pacity at  the  time  of  marriage,  or  if  aware  of  such  inca- 
pacity, did  not  know  it  was  incurable.  Such  an  action 
must  be  commenced  before  five  years  have  expired  since 
the  marriage.     (Co.  Civ.  Proc.  §  1752). 

Whether  the  provision  that  this  action  must  be  com- 
menced within  five  years  is  a  mere  statute  of  limitation, 
or  is  a  condition  precedent  to  the  exercise  of  the  juris- 
diction of  the  court,  see  volume  1,  page  97.  Before  the 
revised  statutes  the  courts  had  no  power  to  annul  a  mar- 
riage for  the  impotency  of  the  husband.  (Burtis  v.  Bur- 
tis,  Hopk.  Ch.  557).  To  authorize  a  judgment  of  nullity 
for  this  reason,  the  physical  incapacity  of  the  defendant 
must  have  existed  at  the  time  of  the  nmrriage  and  must 
be  incurable  (Co.  Civ.  Proc.  §  1743;  Jlilci/  v.  RUcif,  73 
Hun,  575)  ;  and  both  of  these  facts  must  be  established 
by  the  most  satisfactory  evidence,  although  they  are  not 
disputed  by  the  defendant.  Snch  a  judgment  will  not 
be  rendered  upon  a  default  without  examining  the  de- 
fendant on  oath  before  a  referee  to  whom  it  is  referred 


MATRIMONIAL    ACTIONS.  257 

to  take  proof  of  the  facts  aud  eirciiiiistanees  stated  in 
the  comphiiut;  nor  will  a  marriage  be  decreed  void  on 
the  "round  of  the  inipc^tence  of  the  defendant,  until  a 
suriiical  examination  has  been  had  for  the  purpose  of 
ascertaininn"  whether  the  alleged  incapacity  is  incurable, 
if  such  defendant  is  within  the  jurisdiction  of  the  court. 
(Drrciihagh  v.  DcuenbagJi,  5  I'aige,  554).  And  the 
court  has  power  to  order  such  examination.  {CaJiii  v. 
Cahii,  21  Misc.  506).  'The  marriage  will  not  be  annulled 
on  this  ground  where  there  is  a  probability^  of  capacity, 
and  where  there  is  good  reason  to  believe  that  the  disa- 
bility of  the  defendant  may  be  removed  by  a  slight  surgi- 
cal operation,  without  any  danger  whatever  to  the  sub- 
ject of  such  operation.  The  mere  fact  that  the  defend- 
ant is  unwilling  to  cohabit  with  the  plaintiff,  and  there- 
fore refuses  to  submit  to  such  an  operation  for  the  pur- 
pose of  removing  the  temporary  disability,  is  not  a 
ground  for  a  judgment  of  nullity  on  that  ground.  (Dev- 
aiihafjh  v.  DcraubagJi,  G  Paige,  75).  Mere  barrenness  of 
the  wife  is  not  a  ground  for  annulling  the  marriage  con- 
tract. (Devenhagh  v.  Dcrauhagli,  5  Paige,  554,  557; 
Wendel  v.  Wendel,  30  App.  Div.  447). 

Sec.    3.    Proceedings    in    the    action. 

The  action  is  brought  aud  carried  on  in  the  same  man- 
ner as  other  actions  under  the  code  of  civil  procedure. 
If  the  defendant  is  a  non-resident,  service  maj^  be  made 
by  publication.  But  that  course  will  be  proper  only 
Avhere  it  appears  that  the  plaintiff  is  an  actual  resident 
of  the  state  in  good  faith. 

In  an  action  to  annul  a  marriage  or  for  a  separation 
or  a  divorce,  a  final  judgment  shall  not  be  rendered  in 
favor  of  the  plaintiff,  upon  the  defendant's  default  in 
appearing  or  pleading,  unless  either  the  summons  and 
a  copy  of  the  complaint  were  personally  served  upon  the 
defendant;  or  the  copy  of  the  summons  delivered  to  the 
defendant,  upon  personal  service  of  the  summons,  or 
delivered  to  him  without  the  state,  or  published,  pur- 
suant to  an  order  for  that  purpose,  obtained  as  pre- 
scribed in  chapter  V  of  the  code,  contains  the  follow- 
17 


258  ruACTicE. 

iii.U  woi-ds,  or  words  to  llic  same  cITcct,  Iciiihlv  wrillcii  or 
printed  upon  the  face  thereof,  to  wit:  "Aetion  to  annul 
a  nuirriaiie;"  "Action  for  a  divorce;"  or  "Action  foi-  a 
separation;"  accordinji  to  the  article  under  whicli  the 
action  is  brought.  Where  the  suninious  is  personally 
served,  but  a  copy  of  the  complaint  is  not  served  there- 
with; or  where  a  copy  of  the  suninions  and  a  copy  of  the 
conii)laint  are  delivered  to  the  defendant  without  the 
state,  the  certiticate  or  affidavit  proving-  service,  must 
affirnuitively  state,  in  the  body  thereof,  that  such  an  in- 
scription, setting  forth  a  copy  thereof,  was  so  written 
or  printed  upon  the  face  of  the  eopy  of  the  summons 
delivered  to  the  (h'fendant.     (Co.  Civ.  Proc.  §  1774). 

As  to  the  effect  in  another  state  of  the  judgment 
annulling  a  marriage  where  service  is  obtained  by  pub- 
lication and  the  defendant  is  a  non-resident,  the  cases 
are  conflicting;  but  that  subject  is  not  necessary  to  be 
discussed  in  this  book.  Although  prima  facie  the  domi- 
cile of  the  wife  is  the  same  as  that  of  the  husl)and,  yet 
the  law  recognizes  an  exception  to  that  rule  when  the 
action  is  begun  to  dissolve  a  marriage  contract.  In  such 
case  the  legal  identity  of  ikm-sou  and  interest  ceases  to 
exist;  and  the  legal  fiction  of  one  domicile  no  longer 
operates;  and  the  jurisdiction  of  the  court  to  entertain 
the  action  depends  upon  the  actual  existing  facts.  (Mel- 
Jen  V.  Mellen,  10  Abb.  N.  C.  329 ;  note  on  p.  333 ;  Atlier- 
ton  V.  Atherton,  155  N.  Y.  129;  revd.,  181  U.  S.  155). 

For  many  years,  there  was  a  considerable  conflict 
among  the  authorities  as  to  whether  the  court  had 
authority  to  grant  counsel  fees  and  alimony  in  an  action 
U)  annul  a  marriage,  but  the  recent  case  of  IJir/f/ins  v. 
Hharp  (164  N.  Y.  4)  seems  to  have  put  an  end  to  all 
doubt,  and  to  have  determined  that  the  same  power  in 
respect  of  alimony  and  counsel  fees  exists  in  actions  to 
annul  a  marriage  as  in  all  other  actions  for  divorce.  Of 
course,  as  was  said  in  the  case  cited,  the  determination 
of  the  ([uestion  whether  or  not  alimony  and  a  counsel 
fee  shall  be  granted  in  a  particular  case  is  always  dis- 
cretionary. 

Alimony  Avill  not  be  granted  to  a  Avoman  plaintiff  in 
an  action  to  annul  the  marriage,  because  in  such  case 


MATRIMONIAL   ACTIONS.  251) 

she  is  alleging  the  invalidity  of  the  uiari-iage  and  is 
therefore  not  entitled  to  anj'  of  the  privileges  or  pre- 
rogatives of  a  wife;  on  the  other  hand,  where  the  woman 
is  alleging  and  defending  the  validity  of  the  marriage 
against  the  man's  attack,  she  should,  in  a  proper  case, 
be  accorded  the  means  ordinarily  granted  a  wife  of 
making  her  defense.  The  cases  holding  that  alimony 
will  not  be  granted  the  woman  plaintitf  are  Bartlctt  v. 
Bartlett  (Clarke's  Chanc.  4G0),  Mco  v.  Meo  (22  Abb. 
N.  C.  58),  Blood  good  V.  Bloodgood  (59  How.  Pr.  42), 
Hopper  V.  Hopper  (92  Hnn,  4l5),  Park  v.  Park  (24 
Misc.  372),  and  Herron  v.  Herron  (28  Misc.  323).  The 
opinion  in  the  case  of  Alien  v.  Allen  (8  Abb.  N.  C.  175), 
contra,  contains  a  discussion  of  this  matter,  and  the 
result  reached  seems  unsound.  The  authorities  hold- 
ing that  alimony  will  be  allowed  in  a  proper  case  where 
the  woman  is  defendant  are  HUpjins  v.  l^harp  (104  N.  Y. 
4),  O'Dea  v.  (TDea  (31  Hun,  441;  affd.  without  op.,  95 
N.  Y.  067),  Griffin  v.  Griffin  (47  N.  Y.  134),  and  ^'orth 
V.  Xorth  (1  Barb.  Chanc.  241).  A  mother  bringing  the 
action  on  the  ground  that  the  marriage  was  contracted 
by  her  infant  son  while  he  was  under  the  age  of  consent 
will  not  be  compelled  to  pay  alimony  and  a  counsel  fee 
out  of  her  own  means.  {Stirers  v.  Wise,  18  App.  Div. 
316).  There  can  be  no  provision  for  permanent  alimony 
in  a  decree  of  nullity,  and  it  seems  that  a  [)rovision  for 
the  support  of  children  can  be  made  by  such  decree  only 
when  the  marriage  is  avoided  for  force,  duress  or  fraud. 
(Bark  v.  Park,  24  Misc.  372) .  The  mode  of  applying  for 
alimony  and  counsel  fee  and  the  considerations  which 
will  govern  the  court  in  deciding  the  motion  are  dis- 
cussed in  article  V,  section  2,  below. 

An  order,  allowing  a  person  to  maintain  an  action, 
as  the  next  friend  of  an  infant,  as  prescribed  in  section 
1744  of  the  code,  or  as  the  next  friend  of  an  idiot  or  luna- 
tic, as  prescribed  in  section  1748  of  the  code,  may  be 
gi'anted  by  the  court,  in  its  discretion,  without  notice, 
or  upon  notice,  to  such  persons  and  in  such  a  manner,  as 
it  deems  proper.  A  motion  to  vacate  such  an  order  must 
be  made  at  a  term  held  by  the  judge  who  granted  it,  un- 
less he  is  dead,  out  of  office,  or  unable  to  hear  it  by 


-00  PUACTICi:. 

reason  ol"  sickucss  (»r  ollierw  ise;  or  uuli'ss  he  expressly 
diieets  it  to  he  heard  at  a  lenii  held  hy  another  judj^e. 
But  where  sueh  an  or^U'r  has  l)een  <>ranted,  the  court  to 
which  application  for  linal  judgment  is  made,  may  dis- 
miss the  complaint,  if  justice  s(>  re«|uires,  althouj^li,  in  a 
like  case,  the  i)arty  to  the  marriajjfe,  if  plaintitT,  would 
be  entitled  to  jud«;nieut.     (Co.  Civ.  Proc.  §  1755). 

lu  au  actiou  to  annul  a  marriage,  a  final  judj^cuit'nt, 
annulling  the  marriage,  shall  not  be  rendered  by  de- 
fault, for  want  of  au  appearance  or  pleading,  or  upon 
the  trial  of  an  issue,  without  proof  of  the  facts  upon 
which  the  allegation  of  nullity  is  founded.  And  the 
declaration  or  confession  of  either  party  to  the  marriage 
is  not  alone  sufficient  as  prctof;  but  other  satisfactory 
evidence  of  the  facts  must  be  produced.  In  such  an 
action,  except  where  it  is  founded  upon  an  allegation  of 
physical  incapacity  of  one  of  the  parties  thereto,  the 
court  must,  upon  the  apj)lication  of  either  of  the  parties, 
make  an  order  directing  the  trial,  by  a  jury,  of  all  the 
issues  of  fact;  or  it  may,  of  its  own  motion,  make  an 
order  directing  the  trial,  by  a  jury,  of  one  or  more  issues 
of  fact ;  for  which  purpose,  the  questions  to  be  tried  must 
be  prepared  and  settled  as  prescribed  in  section  970  of 
the  code.     (Co.  Ci»v.  Proc.  §  1753). 

Where  a  woman  had  brought  an  action  to  annul  a 
marriage  for  the  reason  that  she  was  the  wife  of  another 
person  at  the  time  that  it  was  contracted,  and  she  had 
upon  the  death  of  such  other  person  claimed  to  be  en- 
titled to  letters  of  administration  because  she  was  his 
widow,  and  had  obtained  a  referee's  report  in  her  favor, 
the  court  upon  application  of  the  heirs-at-law  of  the 
deceased,  sent  the  case  back  to  the  referee  to  allow  such 
heirs-at-law  and  next-of-kin  to  produce  and  examine  wit- 
nesses to  disprove  the  invalidity  of  the  second  marriage. 
It  was  held  in  that  case  that  the  plaintiff  in  the  action 
was  entitled,  if  she  demanded  it,  to  have  the  heirs-at-law 
made  parties  defendant  in  the  action.  (Tilhij  v.  Hai/cs, 
'21  Hun,  251). 

If  the  defendant  fails  to  answer,  a  reference  cannot  be 
had,  but  proof  must  be  made  to  the  court  in  open  court 
and  a  copy  of  the  evidence  shall  be  filed  with  the  judg- 


MATRIMOXIAL   ACTIONS.  261 

iiieiit-i'(»ll.  The  court  may  in  a  proper  case  exclude  all 
pei'soiifs  from  the  court  room  except  the  parties  and  their 
counsel  aud  witnesses,  and  order  the  evidence  to  be 
sealed  up  and  exhibited  only  to  the  parties  to  the  action 
or  some  one  specially  interested  upon  order  of  the  court. 
In  no  case  shall  there  be  a  reference  to  a  referee  agreed 
upon  by  the  parties  or  nominated  by  either  party  or 
\yithout  proof  by  atHidayit  conformable  to  the  rules  relat- 
ing to  the  manner  and  proof  of  the  service  of  the  sum- 
mons and  com])laint.     (Genl.  TUile,  72). 

Before  judgment  by  default  shall  be  granted  in  an 
action  to  annul  a  marriage  on  the  ground  that  the  party 
was  under  the  age  ctf  legal  consent,  proof  must  be  made 
showing  that  the  parties  thereto  have  not  freely  cohab- 
ited for  any  time  as  husband  and  wife,  after  the  plain- 
tiff had  attained  the  age  of  consent.  If  the  action  is 
brought  to  annul  the  marriage,  on  the  ground  that  the 
plaintiff's  consent  was  obtained  by  force  or  fraud,  the 
plaintitf  must  show  that  there  has  been  no  voluntary  co- 
habitation between  the  parties  as  man  and  wife;  and  if 
it  is  brought  to  annul  a  marriage  on  the  ground  that  the 
plaintiff  was  a  lunatic,  proof  must  be  produced  showing 
that  the  lunacy  still  continues;  or  that  the  parties  have 
not  cohabited  as  husband  and  wife  after  the  plaintiff 
was  restored  to  his  reason.     (Genl.  Rule,  73). 

Where  issue  has  been  joined  in  an  action,  the  order  of 
reference  must  be  in  all  cases  to  hear  and  determine  the 
action.  (Vol.  II,  p.  404).  A  compulsory  reference  can 
be  ordered  in  such  action  only  where  the  action  is 
founded  on  the  allegation  of  the  physical  incapacity  of 
the  parties.  (Morrell  v.  Morrell,  17  Hun,  324).  In  all 
other  cases  either  party  has  a  right  to  a  trial  by  jury. 
(Co.  Civ.  Proc.  §  1753).  As  to  the  proceedings  before  a 
referee  see  volume  II,  page  432.  In  an  action  to  annul 
a  marriage,  ju<lgment  cannot  be  taken,  as  of  course, 
upon  a  referee's  report.  In  all  such  cases  the  testimony 
of  the  witnesses  and  the  other  .proceedings  upon  the 
reference,  must  be  certified  to  the  court  by  the  referee 
with  his  report  and  judgment  must  be  rendered  by  the 
court.  (Co.  Civ.  Proc.  §  122<);  Genl.  Rule,  76).*^  An 
elaborate  discussion  of  what  questions  may  be  raised 


2()2  rUAlTK'K. 

upon  motion  hct'oic'  ihc  iH»url,  and  a  collcclion  of  the 
aiitliorities  on  the  subject,  will  be  found  in  the  i-eceut 
ease  of  (loldic  v.  (loldlv  (31)  Misc.  '.\'S\)  ] .  'Phis  snbjcct  is 
fui'tluM-  discussed  under  the  head  of  application  for  judg- 
ment in  actions  for  a  divorce,  section  2,  article  III  of 
this  chapter,  iufru.  It  is  irre<;ulai-  in  these  cases  to  enter 
judj^inent  without  the  special  order  (d'  the  court.  {Blott 
V.  Rider,  47  How.  Pr.  1)0).  Where  a  jury  trial  is  de- 
sired, the  manner  of  procee(linj>-  to  obtain  a  settlement 
of  issues  will  be  found  at  vol.  II,  p.  221),  ct  .scq.  As  to 
the  mode  of  entering-  judgment  after  the  trial  of  ques- 
tions of  fact  by  the  jury,  see  volume  II,  p.  733.  AA'here 
a  trial  by  jury  is  a  matter  of  right  the  court  cannot 
refuse  to  follow  the  verdict  of  the  jury  unless  the  verdict 
is  set  aside.  A  motion  for  a  new  trial  in  such  cases  will 
lie  upon  the  ground  that  the  verdict  is  against  evidence, 
or  upon  any  of  the  other  grotinds.  If  made  upon  the 
ground  that  the  verdict  is  against  evidence,  it  can  only 
be  granted  of  course  for  the  same  reasons  as  in  other 
cases  where  a  trial  by  jury  has  been  had.  (Vol.  II,  p. 
493). 

B3'  chapter  488,  Laws  of  1903,  amending  section  1774 
of  the  code,  an  interlocutory  jtidgment  must  first  be 
entered,  and  final  judgment  cannot  be  entered  until 
three  months  thereafter.  For  the  practice  under  this 
amendment  see  section  2  of  article  lll,infra. 

A  final  judgment,  annulling  a  nuirriage,  rendered  dur- 
ing the  lifetime  of  both  the  parties,  is  conclusive  evi- 
dence of  the  invalidity  of  the  marriage  in  every  court  of 
record  or  not  of  record,  in  any  action  or  special  proceed- 
ing, civil  or  criminal.  Such  a  judgment,  rendered  after 
the  death  of  either  part}^  to  the  marriage,  is  conclusive 
only  as  against  the  parties  to  the  action,  and  those 
claiming  under  them.     (Co.  Civ.  Proc.  §  1754). 


MATRIMONIAL  ACTIONS.  263 

ARTICLE  III. 

ACTION  FOR  A  DIVORCE. 
SECTION. 

1.  When  it  may  be  brought. 

2.  Proceedings  in  the  action. 

3.  Regulations  with  regard  to  judgment. 

Sec.    1.    When  it  may  be  brought. 

In  either  of  the  following  cases,  a  husband  or  a  wife 
may  maintain  an  action,  against  the  other  party  to  the 
marriage,  to  procure  a  judgment,  divorcing  the  parties 
and  dissolving  the  marriage  by  reason  of  the  defendant's 
adultery : 

1.  Where  both  parties  were  residents  of  the  state, 
when  the  offense  was  committed. 

2.  Where  the  parties  were  married  within  the  state. 

3.  Where  the  plaintiff  was  a  resident  of  the  state, 
when  the  offense  was  committed,  and  is  a  resident 
thereof,  when  the  action  is  commenced. 

4.  Where  the  offense  was  committed  within  the  state, 
and  the  injured  party,  when  the  action  is  commenced, 
is  a  resident  of  the  state.     ( Co.  Civ.  Proc.  §  1756 ) . 

As  we  have  seen,  the  jurisdiction  of  the  court  in  these 
cases  exists  only  by  statute.  (See  article  I,  supra). 
The  revised  statutes  used  the  words  "actual  inhabitant" 
in  that  portion  of  it  which  corresponded  to  this  section, 
instead  of  the  word  "resident."  Under  those  statutes 
it  was  held  that  where  a  marriage  had  been  solemnized 
abroad,  it  must  appear  that  the  plaintiff  was  an  actual 
resident  of  the  state  at  the  time  of  the  commission  of  the 
offense  and  also  at  the  time  of  the  commencement  of  the 
action,  in  order  to  entitle  him  to  maintain  the  action  for 
the  divorce.  {Otto  v.  Otto,  8  Wk.  Dig.  413;  McXeiJ  v. 
McXcil,  3  Edw.  Ch.  550).  The  change  in  the  wording 
of  the  statute  has  not  changed  this  rule  of  law.  (De 
Meli  V.  De  Meli,  120  N.  Y.  485;  Dickinson  v.  Dicldnson, 
63  Hun.  516. 

If  a  married  woman  dwells  within  the  state,  when 
she  commences  an  action  against  her  husband  for  a 
divorce  or  separation,  she    is  deemed  a  resident  thereof, 


L'G-4  I'U.u  rici:. 

altliouyh    her    hushand    resides    elsewhere.       ((,'0.    Civ. 
Proc.  §  1768;  Gran  v.  (Iran,  1 4:J  X.  V.  354 ). 
•      In  either  of  the  f(>lh)\viii^-  eases,  the  phiintitT  is  not 
entitled  to  a  divorce,  althonj-h   the  aduller.v   is  estab- 
lished : 

1.  \\'here  the  oti'ense  was  coniinitted  l)V  the  pi-ocm-e- 
nu'iit  or  witli  tlie  connivance  of  the  plaint  ill'. 

2.  \\here  the  offense  charged  has  been  forgiven  by 
the  i)laint  iff.  The  forgiveness  may  be  ]»rove(l,  either 
atiiruiatively,  or  by  the  voluntary  cohabitation  of  the 
parties,  with  the  knowledge  of  the  fact. 

3.  Where  there  has  l)een  no  express  forgiveness,  and 
no  voluntary'  cohabitation  of  the  parties,  but  the  action 
was  not  commenced  within  five  years  after  the  discov- 
ery, by  the  plaintiff,  of  the  offense  charged. 

4.  Where  the  plaintitf  has  also  been  guilty  of  adul- 
tery, under  such  circumstances,  that  the  defendant 
would  have  been  entitled,  if  innocent,  to  a  divorce.  (Co. 
V\\.  Proc.  §  1758). 

It  is  usual  to  allege  in  the  complaint  that  the  adultery 
for  which  the  action  was  brought  was  not  by  the  con- 
sent, connivance,  privity  or  procurement  of  the  plain- 
tiff ;  that  five  years  have  not  elapsed  after  the  discovery 
of  the  adultei'v  by  the  plaintiff  before  the  commence- 
ment of  the  action;  and  that  the  plaintiff  has  not  volun- 
tarily cohabited  with  the  defendant  after  the  discovery 
of  the  adulter-y.  These  allegations  do  not  appear  to  be 
required,  although  in  the  case  of  Myers  v.  Mi/rrs  (41 
Barb.  114)  it  is  stated  that  they  must  be  averred. 

Ceneral  rule  72  provides  that  when  the  action  is  for 
a  divorce  on  the  ground  of  adultery,  unless  it  be  averred 
in  the  complaint  that  the  adultery  charged  was  com- 
mitted without  the  consent,  connivance,  privity  or  pro- 
curement of  the  plaintiff;  that  five  years  have  not 
elapsed  since  the  discovery  of  the  fact  that  such  adul- 
tery had  been  committed;  and  that  the  plaintiff  has  not 
voluntarily  cohabited  with  th(^  defendant  since  such  dis- 
covery; and  also,  where,  at  the  time  of  the  offense 
chai-ged,  the  defendant  was  living  in  adulterous  inter- 
course with  the  person  with  whom  the  offense  is  alleged 
to  have  been  committed,  that  five  years  have  not  elapsed 


MATRIMONIAL   ACTIONS.  265 

since  the  commenceineut  of  such  adulterous  intercourse 
was  discovered  by  the  plaintiff,  and  the  complaint  con- 
taiuino-  such  averments  be  verified  by  the  oath  of  the 
plaintiff,  in  the  manner  prescribed  by  the  code,  judg- 
ment shall  not  be  rendered  for  the  relief  demanded,  until 
the  plaintiff's  aflidavit  be  produced,  stating  the  above 
facts.  In  view  of  the  provisions  of  this  general  rule,  it 
is  well  to  make  these  allegations  in  the  complaint, 
although  the  facts  mentioned  in  section  1758  of  the  code 
amount  rather  to  a  forfeiture  of  the  right  of  action  than 
to  conditions  precedent.  As  such,  they  are  spoken  of 
in  Farare  v.  Fa  race  (61  How.  Pr.  61).  They  are  mat- 
ters of  defense,  and  in  a  contested  action  no  proof  need 
be  made  of  them  by  plaintiff  as  part  of  his  case.  {Mc- 
Carthij  V.  McCartJuj,  143  N.  Y.  235).  In  the  case  of  de- 
fendant's default  the  proof  should  be  made  by  verified 
complaint  or  by  affidavit  rather  than  by  oral  evidence. 
(Evans  v.  Evans,  2.1  Misc.  10).  Procurement  or  conniv- 
ance forfeits  the  right  to  the  divorce  on  the  gTOund  of 
adultery,  on  the  principle  that  he  who  consents  to  it 
cannot  receive  an  injury.  (Mijevs  v.  Myers,  41  Barb. 
114;  Cowan  v.  Cowan,  23  Misc.  754).  It  is  said  in  the 
case  of  Rogers  v.  Rogers  (3  Hagg.  58)  that  in  order  to 
constitute  connivance,  actual  co-operation  is  not  neces- 
sary; passive  acquiescence,  with  the  intention  and  in 
the  expectation  that  guilt  will  follow,  is  sufficient.  On 
the  other  hand,  there  must  be  consent  either  express  or 
necessarily  implied  from  the  circumstances  of  the  case; 
mere  negligence  or  inattention  or  overconfidence  or 
dullness  of  apprehension  or  indifference  is  not  suffi- 
cient. It  was  held  in  Cower  v.  Cower  (Law  Rep.  2  P. 
&  D.  428;  see,  also,  Myers  v.  Myers,  41  Barb.  114)  that 
if  a  person  employed  by  the  husband  to  watch  the  wife, 
for  the  purpose  of  obtaining  evidence  of  adultery,  brings 
about  the  act  of  adultery,  the  husband  cannot  obtain  a 
decree  of  dissolution  on  the  ground  of  such  adultery, 
although  he  may  not  have  directed  or  authorized  his 
agent  to  bring  it  about.  Connivance  is  an  agreement 
between  the  parties  for  one  of  them  to  commit,  or 
appear  to  commit  an  act  of  adultery,  so  as  to  suffer  the 
other  to  obtain  a  remedy  at  law,  as  for  a  real  injury. 


266  PRACTICE. 

{Crewe  V,  Crewe,  3  IIa«2:g.  131).  Mr.  Barbour  says 
that  tliat  was  probably  what  was  meant  by  tlie  word 
"  prociuciiu'nt  "  in  the  statute.  (2  Barb.  Ch.  Pr.  254; 
2  liotr.  (Ml.  l*r.  288).  A  husband  is  not  "guilty  of  con- 
nivance who,  with  the  intention  <»f  obtaining  evidence, 
fails  to  interfere  to  prevent  his  wife's  adultery,  wlien, 
had  he  desired  to  do  so,  he  could  have  prevented  it. 
(Reiersen  v.  Reierscn,  32  App.  l)iv.  62;  Pcttee  v.  Fettee, 
11  TTun,  50.1;  affd.  without  op.,  148  N.  Y.  735). 

Where,  up(ui  the  trial  of  an  action  brought  by  the 
wife  to  procure  a  divorce  from  her  husband,  it  appeared 
that  he  had  committed  adultery  with  her  connivance 
and  consent,  and  the  (U'fendant  alleged  and  proved  that 
his  wife  had  committed  adultery  once  before  and  once 
after  the  time  charged  at  which  he  had  committed  it, 
and  that  he  had  not  connived  at  or  consented  to  her  so 
doing,  and  that  he  had  not  condoned  her  offense,  it  was 
held  that  her  connivance  at  his  adultery  prevented  her 
from  using  it  as  a  defense,  and  that  he  was  entitled  to 
an  absolute  divorce.  (Bleck  v.  Bleck,  27  Hun,  296). 
Condonation  or  forgiveness  is  always  a  defense,  if  it 
appears  at  any  stage  of  the  case.  If  the  court  has  rea- 
son to  suspect  that,  or  of  any  other  valid  defense  at  any 
stage  of  the  cause,  although  not  pleaded,  it  will  inquire 
into  it,  or  will  allow  an  amendment  to  enable  the  de- 
fendant to  set  it  up.  {I^mitli  v.  ^^initJi,  4  Paige,  432; 
Prcl-  V.  Feck,  44  llun,  200;  Mmill  v.  Merrill,  41  App. 
Div.  347).  It  is  not  the  policy  of  the  law  to  allow  judg- 
ments of  divorce  to  be  taken  where  a  valid  defense 
exists,  and  the  courts  on  their  own  motion  will  inter- 
fere to  i)revent  such  a  result  where  the  facts  are  brought 
to  their  knowledge  in  any  way.  (Id.).  A  voluntary 
cohabitation  by  the  plaintiff  with  the  defendant  with 
full  knowledge  of  the  adultei-y  ojierates  as  a  condona- 
tion (Johnson  v.  Johnson,  14  Wend.  637)  ;  but  while 
this  is  the  general  rule,  it  is  not  without  exceptions. 
The  fact  of  cohabitation  by  the  wife,  will  not  always 
be  held,  as  a  matter  of  law,  to  be  a  condonation  and  a 
strict  bar  to  her  action  for  a  divorce;  because  she  is  to  a 
certain  extent  undei-  the  control  of  her  husband.  (Hood 
V.  Wood,  2  Paige,  108;  Johnson  v.  Johnson,  1  Edw.  Ch. 


MATRIMONIAL    ACTIONS.  2()7 

439).  To  be  effectual  as  a  bar  the  condonation  must 
have  been  made  with  knowledge  of  the  facts ;  mere  sus- 
picion is  not  sufficient ;  there  must  be  such  knowledge  as 
to  create  a  belief  of  the  facts  in  the  mind  of  a  reasona- 
ble person,  if  indeed  it  is  not  necessary  that  the  plaintiff 
should  have  actual  belief  in  the  guilt  of  the  other  party. 
{Uhhnanii  v.  Lhlmann,  IT  Abb.  N.  C.  23G;  Harris  v. 
Harris,  83  App.  Div.  123).  Although  the  husband 
knows  of  facts  Avhich  are  calculated  to  make  him  sus- 
picious, he  is  not  obliged  to  believe  the  evidence,  in  the 
face  of  his  wife's  denial.  (DeisJer  v,  Deisler,  59  App. 
Div.  207). 

Condonation  is  only  a  conditional  forgiveness;  and 
a  repetition  of  the  offense  will  revive  the  injury. 
(Smith  V.  Smith,  4  Paige,  432). 

There  has  been  a  difference  of  judicial  ofjinion  in 
regard  to  the  nature  of  the  act  which  will  effect  the 
revival  of  the  condoned  adulterv.  According  to  the 
English  authorities,  in  order  to  revive  a  condoned 
adultery,  it  is  not  necessary  that  the  new  injury  should 
be  of  the  same  nature;  but  cruelty  or  desertion  or  other 
improper  conduct  of  the  husband  towards  his  wife  is 
held  sufficient  for  that  purpose,  upon  the  theory  that 
there  is  an  implied  promise  on  the  part  of  the  former 
husband  that  he  will  treat  his  Avife  properly  thereafter. 
{Diirant  v.  Burant,  1  Hagg.  745).  In  this  state,  how- 
ever, it  has  been  held  in  well  considered  cases  that  the 
revival  of  a  condoned  offense  can  be  only  by  the  com- 
mission of  a  new  offense  of  the  like  nature,  which  would, 
of  itself,  entitle  the  injured  party  to  a  divorce.  (Smith 
V.  Smith,  4  Paige,  432;  Johnson  v.  Johnson,  4  Paige, 
460).  Yet  upon  appeal  in  Johnson  v.  Johnson  the 
court  of  errors  seem  to  have  been  equally  divided  upon 
this  question  (14  Wend.  637,  648),  and  in  Delsier  v. 
DaisJcr  (59  Ai)p.  Div.  207)  the  court  say,  obiter,  that 
the  law  laid  down  in  the  English  cases  is  the  law  of 
this  state;  and  where  it  appeared  that  the  condonation 
of  the  adultery  was  upon  the  express  promise  b}^  the 
husband,  who  was  the  guilty  party,  that  he  would  in  all 
things  thereafter  treat  his  wife  kindly  and  in  a  proper 
manner  and  Avould  be  a  good  and  affectionate  husband 


208  I'UACTICK. 

to  her,  it  was  held  thai  a  \i<»laiiini  of  llial  iti'omisc  re- 
viv(Ml  the  ollcMsc,  and  llial  (Ik*  ad  ion  lor  a  <li\(»rf(Miii^bt 
Ik*  inaiulaiiKMl  I'ctr  il.  (T'umrson  v.  'J'hiicrsoH ,  '2  How. 
Pr.  X.  S.  olM);  see,  also,  Betz  V.  lictz,  '2  Ilobt.  ()l>4).  To 
make  the  act  of  condonation  etftM-tnal,  it  must  be  one 
to  which  b(>th  husband  and  wilV  assent,  and  in  which 
each  participates.  An  unaccepted  otter  of  the  wife  to 
return  to  the  bed  of  her  husband,  after  he  has  com- 
mitted adultery,  is  not  of  itself  comloutitiou.  {Betz  V. 
Jictz,  f^iijtra).  Where  it  appears  that  more  than  five 
y(*ars  liave  elapsed  since  the  kuowledj^e  of  the  adultery 
came  to  the  plaintiff,  the  complaint  must  be  dismissed. 
If  the  plaintiff  knoAvs  that  his  wife  has  married  a  sec- 
ond time,  and  that  she  has  lived  and  cohabited  with  her 
second  husband,  or  if  he  knows  that  she  is  living  in 
open  and  notorious  adultery  with  a  paramour,  his  right 
to  a  divorce  on  acccumt  of  that  adultery  will  be  barred 
at  the  expiration  of  tive  years  from  the  time  he  first 
learned  of  it;  although  it  has  been  continued  down  to 
the  time  of  th(?  commencement  of  the  action.  And 
where  it  has  continued  to  be  notorious  for  more  than 
five  years,  the  plaintiff  must  show  good  reason  why  he 
did  not  know  of  the  same,  until  five  years  before  the 
commencement  of  his  action.  (  Valleau  v.  Valleau,  6 
Paige,  207). 

The  adultery  of  the  plaintiff  is  an  absolute  bar  to  a 
judgment  (ui  her  part  for  a  divorce  {recJx  V.  Peck,  44 
Hun,  290)  ;  although  it  appears  that  it  was  committed 
after  the  action  was  commenced.  (Smith  V.  Hmith,  4 
Paige,  432).  The  couit  will  allow  the  defendant  to 
amend  his  answer  so  as  to  set  it  up.  To  establish  adul- 
tery as  a  defense,  it  is  not  nec<>ssary  that  it  should  be 
committed  undei-  such  circumslances  as  to  give  the  court 
jurisdiction  to  grant  a  divorce  for  it.  It  is  a  sufficient 
bar  to  the  action,  although  it  does  not  appear  that  at  the 
time  of  its  commission  the  parties  were  inhabitants  of 
this  state,  or  that  the  defendant  at  that  time,  or  at  the 
time  of  the  commencement  of  the  action  was  a  resident 
of  the  state.  {  fjcsciicr  \.  fjcsrurr,  S'i  Barb.  330).  The 
evidence  required  to  prove  the  adultery  when  it  is  set 
up  as  a  defense  to  the  action,  should  be  as  strong  and 


MATRIMONIAL    ACTIONS.  269 

couvincing;  as  that  which  is  necessary  to  sustain  a  suit 
for  a  divorce  on  the  ground  of  adultery.  {PoUocJi  v. 
Pollock,  11  N.  Y.  137). 

Sec.    2.    Proceedings  in  the  action. 

The  proceedings  in  the  action  are  the  same  as  those  in 
any  other  personal  action,  and  are  governed  by  the  same 
regulations.  It  should  be  brought  in  the  county  in 
which  one  of  the  parties  resided  at  the  time  of  the  com- 
mencement of  the  action.  [Jciritt  V.  Jeicitt,  18  N.  Y. 
St.  Rep.  238).  As  to  the  requirements  with  regard  to 
the  form  and  service  of  the  summons  and  proof  of  ser- 
vice thereof,  see  article  II,  section  three,  supra. 

As  to  the  general  rules  for  what  should  be  contained 
in  the  complaint,  see  volume  I,  page  391,  and  section 
one,  supra.  The  complaint  should  allege  the  marriage, 
and  the  facts  showing  that  the  court  has  jurisdiction  of 
the  parties  within  section  175G  (supra).  The  adultery 
of  the  defendant  should  be  stated  with  reasonable  cer- 
tainty, so  that  the  defendant  can  identify  the  offense  of 
which  he  or  she  is  charged ;  and  should  be  accompanied 
with  so  much  particularity  of  time  and  place  and  per- 
son, as  reasonably  to  inform  the  defendant  of  the  crim- 
inal intercourse  designed  to  be  relied  on  as  the  basis 
of  the  action.  (CardweU  v.  CarchceU,  12  Hun,  92). 
Although  the  person  with  whom  the  adultery  was  com- 
mitted is  unknown  to  the  party  pleading,  yet  the  times 
and  places  should  be  specifically  stated;  or  if  the  time 
and  place  are  unknown,  the  complaint  should  state 
specifically  the  person  with  whom  the  adultery  is  alleged 
to  have  been  committed.  (Tim  v.  Tiiu,  IG  Abb.  Pr. 
N.  S.  39;  CardweU  Y.  CardweU,  supra). 

The  rule  has  been  laid  down  that  it  is  necessary  to 
state  the  name  of  the>  person  with  whom  the  adultery 
has  been  committed  if  the  person  is  known;  but  if  the 
person  is  unknown,  that  fact  should  be  stated  in  the 
complaint ;  and  there  must  be  a  reasonable  certainty  as 
to  the  time  and  place.  {MorreU  v.  Morrell,  1  Barb. 
318;  Mitchell  v.  Mitchell,  Gl  N.  Y.  398).  In  the  case 
last  cited  where  the  complaint  averred  the  commission 
of  the  offense  with  a  person  whose  name  was  unknown 


270  I'K.uTici:. 

l«>  tlu' plaiutilT,  ;il  liiues  iK'twccii  (-(M-taiii  spiM-iticd  dates 
and  in  the  town  oi-  city  named,  with  I  he  lui-ther  aver- 
ment that  the  i)hiintilT  was  unahU-  to  state  more  par- 
tienhn-ly  the  times  and  phiees;  it  was  hehl  that  it  was 
suflicient  to  authorize  evidence  in  proof  of  the  offense  so 
chariied,  and  if  it  was  proved,  to  sustain  the  action, 
although  no  proof  was  <^iven  of  offenses  particuhirly 
charged.  In  tlmt  case,  however,  the  (h'feuthmt  had 
answered  the  complaint  with  a  general  denial,  and  had 
made  no  motion  to  uuike  the  complaint  definite  and 
certain,  or  f<u'  a  hill  of  ])articulars.  As  to  whether  it 
is  necessary  to  negative  the  facts  stated  in  section  1758, 
see  section  one,  supra.  If  there  are  children  of  the 
marriage,  and  the  plaintiff  seeks  to  have  the  custody 
of  the  children  awarded  to  him,  the  complaint  should 
allege  the  facts  which  are  necessary  to  enable  the  court 
to  pass  upon  that  (piestion.  On  a  complaint  filed  by 
a  husband,  if  he  wishes  to  question  the  legitimacy  of  any 
of  the  children  of  the  wife,  the  allegation  that  they  are 
or  that  he  believes  them  to  be  illegitimate,  shall  be  dis- 
tinctly made  in  the  complaint.  If,  upon  default,  proofs 
shall  be  taken  upon  the  (|uestion  of  legitimacy,  as  well 
as  upon  the  other  matters  stat<Ml  in  the  complaint,  and 
if  the  issue  is  tried  by  a  jury,  an  issue  upon  the  question 
of  legitimacy  of  the  children  shall  be  awarded  and  tried 
at  the  same  time.  (Genl.  Kiile,  75).  If  the  allegations 
of  the  complaint  are  not  specific  enough  to  enable  the 
defendant  to  meet  charges  made  in  it,  his  remedy  is  by 
a  motion  to  make  the  complaint  definite  and  certain 
(vol.  I,  p.  388),  or  for  a  bill  of  particulars.  (Vol.  I, 
p.  353).  The  latter  is  generally  the  proper  remedy. 
(KcUy  v.  Kcllij,  12  Misc.  457).  As  to  the  granting  of 
an  order  of  arrest  in  the  action  see  volume  I,  pp.  485, 
407. 

The  court  may  appoint  a  receiver  whenever  it  is  neces- 
sary to  do  justice  between  the  parties.  {Kirhy  v.  Kirhy, 
1  Paige,  261).  It  seems  now  to  be  settled  that  an  action 
for  a  divorce  and  an  action  f(jr  a  separation  cannot  be 
joined.  (BvchhoJz  v.  llnchlioh,  1  How.  Pr,  N.  S.  46; 
Zorn  V.  Zorn,  38  Hun,  67).  Where  the  defendant  fails 
to  answer,  no  reference  can  be  granted  to  take  proof  of 


MATRIMONIAL   ACTIONS.  271 

the  facts  stated  iu  the  comphiiut,  but  siic-h  facts  must 
be  proved  before  the  court  iu  opeu  court.  (Geul.  Rule, 
72).  ^A'here  a  referee  is  appointed,  General  Rule  72 
provides  that  he  shall  not  be  nominated  bv  either  party, 
and  that  no  referee  shall  be  appointed  without  proof 
by  affidavit  of  the  service  of  the  summons  and  complaint 
in  the  manner  prescribed  l)y  the  statute;  that  rule  also 
provides  that  notice  of  appearance  and  retainer  does 
not  excuse  that  proof.  A  reference  to  a  referee  agreed 
upon  by  the  parties  was  held  void  in  Pnitt  v.  Pratt  (2 
App.  Div.  534),  and  merely  irregular  in  Young  v.  Young 
(38  Misc.  109).  The  order  of  reference  should  provide 
for  the  usual  reference  to  hear  and  determine;  any  other 
order  is  irregular.  {HulUran  v.  SiUHran,  11  N.  Y. 
Super.  Ct.  Rep.  519;  McClearg  v.  McClearg,  30  Hun, 
154).  The  rules  with  regard  to  the  proceedings  before 
a  referee  are  found  at  volume  II,  pp.  432,  436. 

If  the  answer  does  not  put  in  issue  the  allegation  of 
adultery,  or  if  the  defendant  makes  default  in  appear- 
ing or  pleading,  the  plaintiff,  before  he  is  entitled  to 
judgment,  must  nevertheless  satisfactorih-  prove  the 
material  allegations  of  his  complaint,  and  also,  by  his 
own  testimony  or  otherwise,  that  there  is  no  judgment 
or  decTee,  in  any  court  of  the  state  of  competent  juris- 
diction, against  him  in  favor  of  the  defendant  for  a 
divorce  upon  the  ground  of  adultery.  (Co.  Civ.  Proc. 
§  1757). 

In  an  action  brought  to  obtain  a  divorce  on  the 
ground  of  adultery,  the  plaintiff  or  defendant  may  serve 
a  copy  of  his  pleading  on  the  co-respondent  named 
therein.  At  any  time  within  twenty  days  after  such 
service  on  said  co-respondent,  he  maj^  appear  to  defend 
such  action,  so  far  as  the  issues  affect  such  co-respond- 
ent. If  no  such  service  be  made,  then  at  any  time  be- 
fore the  entry  of  judgment  any  co-respondent  named  in 
any  of  the  pleadings  shall  have  the  right,  at  any  time 
before  the  entry  of  judgment,  to  appear  either  in  ])erson 
or  by  attorney,  in  said  action,  and  demand  of  plaintiff's 
attorne}^  a  copy  of  the  summons  and  complaint,  which 
must  be  served  within  ten  days  thereafter,  and  he  may 
appear  and  defend   such   action,   so  far  as  the  issues 


_<-  rUACIICK. 

affect  siu'h  co-ros])()nflont.  In  case  no  one  of  (he  allega- 
tions of  adnltci'v  controverted  by  snch  co-resi)on(lcnt 
shall  be  proved,  snch  <()-respondeut  shall  be  entitled  to 
a  bill  of  costs  auainst  the  i)erson  naniinii'  him  as  such 
co-respondent,  which  bill  oT  costs  shall  consist  only  of 
the  sum  now  allowed  liy  law  as  a  trial  fee,  and  disburse- 
ments, and  such  co  lesixtudent  shall  be  entitled  to  have 
an  execution  issue  for  the  collection  of  the  same  (Co. 
Civ.  l*roc.  §  1757,  subd.  2,  enacted  by  chap.  ()()!,  Laws 
ISlMh. 

Either  party  is  a  competent  witness  only  to  prove 
the  marriage  or  disprove  the  allegation  of  adultery  (Co. 
Civ.  Proc.  §  831;  VaJcutluc  v.  ^'uJ(■l^t\)^c,  87  i\pp.  Div. 
15G )  ;  but  in  case  of  defendant's  default  the  facts  re- 
(juired  to  be  proved  by  general  rule  72,  and  the  further 
fact  that  there  is  no  judgment  or  decree  in  any  coui-t  of 
the  state  against  the  plaintilT  in  favor  of  the  defemlant 
for  a  divorce  on  the  ground  of  adultery  (Co.  Civ.  Proc. 
§  1757),  may  be  proved  an<l  shown  l)y  the  evidence  of 
the  plaintiff.  And  where  plaintiff  brings  an  action  for 
a  separation,  and  defendant  denies  the  alleged  cruelty 
and  by  way  of  counterclaim  charges  adultery  on 
plaintiff's  part  and  asks  for  a  divorce,  and  the  issues 
are  tried  together,  defendant  may  testify  to  nlatters 
bearing  upon  the  issue  of  cruelty,  even  though  such 
testimon}^  tends  to  show  plaintiff's  adultery.  (  Wood- 
rick  V.  Woodrick,  141  N.  Y.  457;  McCartliij  v.  McCarthy, 
143  N.  Y.  235).  Testimony  competent  upon  either 
issue  must  be  admitted.  (De  Mdi  v.  I)c  Mdi,  120  N. 
Y.  485).  The  evidence  to  warrant  a  judginent  for  a 
divorce  on  the  ground  of  adultery  must  be  clear  and 
satisfactory;  and  it  must  show  the  guilt  of  the  defend- 
ant as  a  necessary  conclusion.  (Ferf/nson  v.  Ferguson, 
3  Sand.  307;  Biirch  v.  liun-h,  80  App.  Div.  55). 

A  divorce  will  not  be  grant(Ml  on  the  evidence  of  a 
prostitute  or  a  ijrivate  detective  alone  (Moller  v.  U oiler, 
115  N.  Y.  460;  Winston  v.  Winston.  Ifi5  N.  Y.  553)  ;  nor 
upon  the  evidence  of  a  paramour  if  it  is  unsupported. 
(Beadleston  v.  Beadleston,  20  N.  Y.  St.  Rep.  21;  Anon., 
5  Robt.  611;  Glaser  v.  Ghiser,  36  Misc.  231).  Con- 
fessions of  the  defendant  are  alwavs  admissible  in  evi- 


MATUIMONIAL   ACTIONS.  273 

dence,  but  to  avoid  the  dansivr  of  colhision  the  court 
before  grautiu^  the  judiiineiit  of  divorce  upon  them,  will 
require  such  corroborations  of  the  confessions  as  to 
remove  all  just  suspicion  of  collusion.  AA'hen  that  is 
satisfactorily'  done  the  confessions  are  a  sufticient  basis 
for  a  judgment  of  divorce.  (Madf/c  v.  Madfje,  42  Hun, 
524;  Foiclcr  v.  Foiclvr,  21)  Misc.  (570 ).  It  is  not  usual, 
nor  would  it  be  proper,  however,  to  grant  a  divorce 
upon  evidence  of  confessions  alone;  unless  they  are 
corroborated  in  such  a  way  as  to  dispel  any  suspicion 
that  they  are  collusive. 

No  final  judgment  annulling  a  marriage,  or  divorcing 
the  parties  and  dissolving  a  marriage,  shall  be  entered 
until  after  the  expiration  of  three  months  after  the  fil- 
ing of  the  decision  of  the  court  or  report  of  the  referee. 
After  the  expiration  of  said  period  of  three  months  final 
judgment  shall  be  entered  as  of  course  upon  said  de- 
cision or  report  unless  for  sufficient  cause  the  court  in 
the  meantime  shall  have  otherwise  ordered.  Upon 
filing  the  decision  of  the  court  or  report  of  the  referee, 
a  judgment  shall  be  interlocutory  only  and  shall  pro- 
vide for  the  entry  of  final  judgment  granting  such  relief 
three  months  after  the  entry  of  interlocutory  judgment 
unless  otherwise  ordered  by  the  court.  The  interlocu- 
tory judgment  may,  in  the  discretion  of  the  court,  pro- 
vide for  the  payment  of  alimony  until  the  entry  of  final 
judgment;  it  may  include  a  judgment  for  costs,  when 
costs  are  awarded,  in  which  case  said  judgment  for 
costs  shall  be  docketed  by  the  clerk,  and  thereupon  shall 
have  the  same  force  and  effect  as  if  docketed  upon  the 
entry  of  final  judgment  therein,  except  that  it  shall  not 
be  enforcible  by  execution  or  punishment  until  the  entry 
of  final  judgment  in  said  action.  (Co.  Civ.  Proc.  § 
1774,  as  amended  by  chap.  488,  Laws  1903).  Under 
section  1774  the  three  months  begin  to  run  from  the 
entry  of  the  interlocutory  judgment  and  not  from  the 
filing  of  the  referee's  report.  { Gibson  v.  Gibs'on,  40 
Misc.  103).  The  mere  signing  of  the  interlocutory  judg- 
ment is  not  sufficient  to  set  the  time  running.  {Roth- 
stein  V.  Bothsfein,  40  Misc.  101). 
18 


-74  I'UACTK^K. 

Jiuljiinent  can  in  no  case  he  entered  withont  ap[jlica- 
tUm  to  the  couil  w  liicli  must  be  made  at  a  special  term. 
If  the  (h'feu(hiut  lias  appeared,  he  is  entitled  of  course 
to  notice  of  the  aj)i>lication  for  judj^ment.  Where  an 
issue  has  been  joined,  and  it  has  been  referred  to  a 
referee  to  hear  and  determine,  althounh  judgment  can- 
not be  entered  without  an  application  to  the  court,  the 
extent  of  the  power  of  the  court  upon  such  application 
is  not  thoroughly  settled.  In  L'/iIiikiiiii  v.  I  hlmanii 
(17  Abb.  N.  C.  1*30,  202,  204),  it  was  held  in  the  superior 
court  and  the  court  of  common  pleas  that  the  sui)er- 
visinii-  power  was  vested  in  the  court  simply  as  a  pro- 
tection against  fraud  or  collusion,  or  failure  to  comply 
with  the  various  special  statutory  requirements  as  to 
the  conduct  of  actions;  and  while  the  court  might  order 
a  new  trial,  that  should  not  be  done  if  there  was  enough 
on  the  whole  case  to  show  that  the  decision  of  the  referee 
was  substantially  right.  But  in  Hartman  v.  Hartman 
(9  N.  Y.  St.  Rep.  848),  which  was  decided  by  the  gen- 
eral term  of  the  supreme  court  in  the  first  department, 
where  an  answer  had  been  interposed,  and  the  case  had 
been  referred  to  a  referee  to  hear  and  determine,  and 
his  report  was  made  that  the  com])laint  should  be  dis- 
missed, the  court  refused  to  confirm  it  upon  the  ground 
that  it  was  not  warranted  by  the  evidence;  and  the 
general  term  affirmed  the  order.  The  same  course  was 
taken  in  Harding  v.  Harding  (43  N.  Y.  Super.  Ct. 
Rep.  27).  The  rule  seems  to  be  that  upon  such  a 
motion  the  court  has  power  to  examine  the  evidence  and 
proceedings  sufficiently  to  assure  itself  that  there  is  no 
irregularity  or  collusion,  that  all  the  statutory  rules 
have  been  comy)lied  with,  and  that  the  evidence  is  such 
as  to  warrant  the  referee  in  reaching  the  conclusion  he 
has  arrived  at;  but  that  eri-ors  in  the  rulings  of  the  ref- 
eree cannot  be  considered,  nor  can  the  court  order  a  new 
trial  because  the  findings  are  against  the  weight  of  evi- 
dence, if  there  is  sufficient  prima  facie  evidence  to  war- 
rant the  referee  in  reaching  the  conclusion  which  he  did. 
(Goldie  V.  Goldie,  39  Misc.  389,  395). 


MATUIMOMAL   ACTIONS.  275 

The  answer  of  tlie  defendant  may  be  made  without 
verifying  it,  notwithstanding  tlie  verification  of  the  com- 
plaint.     (Co.  Civ.  Proc.  §  1757). 

If  the  defendant  relies  upon  recrimination  or  condo- 
nation, it  should  be  pleaded.  {lioc  v.  L'oc,  14  Hun, 
612;  Merrill  v.  Merrill,  41  App.  Div.  347).  The  defend- 
ant cannot  set  up  as  a  defense  the  impotency  of  the 
plaintiff.      [Griffin  v.  Griffin,  23  How.  Pr.  183 j. 

Where  an  action  for  divorce  or  separation  is  brought 
by  either  husband  or  wife,  a  cause  of  action  against  the 
plaintitf  and  in  favor  of  the  defendant,  for  either  of 
those  causes,  may  be  interposed,  in  connection  with  a 
denial  of  the  material  allegation  of  the  complaint,  as  a 
counterclaim.      (Co.  Civ.  Proc.  §  1770). 

In  actions  for  a  sejDaration,  the  defendant  may  set  up 
adultery  of  the  plaintiff  as  a  defense  and  a  counterclaim 
and  demand  a  divorce.  (Tnn  Benfhuyscti  v.  Tan  Ben- 
thuysen,  17  N.  Y.  St.  Rep.  978 ;  De  Meli  v.  De  Meli,  120 
N.  Y.  485).  In  such  cases  adultery  of  the  plaintiff  is  a 
defense  to  the  action;  but  in  an  action  for  a  divorce, 
cruel  and  inhuman  treatment  of  the  defendant  by  the 
plaintitf  is  not  a  defense.  It  may,  however,  be  set  up  as 
a  counterclaim  and  judgment  for  a  separation  recovered 
thereon  in  case  plaintiff  fails  to  prove  the  adultery 
charged.  (Israel  v.  Israel,  38  Misc.  335).  Where  a 
counterclaim  is  alleged  under  section  1770,  the  plaintiff 
must  reply.  The  rules  with  regard  to  the  reply  are 
found  at  volume  I,  page  457.  As  to  the  mode  of  trial 
and  the  settlement  of  issues,  see  volume  II,  pages  213, 
224,  et  seq.  Wherever  the  adultery  is  denied,  a  jury 
trial  is  a  matter  of  right  and  must  be  granted  upon  the 
application  of  either  party.  (Galusha  v.  Galusha,  43 
Hun,  181 ;  modified  on  other  grounds,  116  N.  Y.  635 ; 
llhricht  V.  JJlhricht,  89  Hun,  479).  The  right  may  be 
waived,  however.  {Winans  v.  M'inans,  124  N.  Y.  140). 
A  verdict  in  such  case  is  conclusive  unless  set  aside  or 
a  new  trial  granted.  {Loirenthul  v.  Loicenthal,  157 
N.  Y.  236).  If  the  adultery  is  alleged  in  the  answer 
as  a  defense,  it  is  error  in  the  referee  to  refuse  to  pass 
upon  it.      (Paul  v.  Paul,  11  N.  Y.  St.  Rep.  71).     A  con- 


270  I'KArrici: 

elusion  of  law  that  tlio  j)laiTitiff  is  entitled  to  a  divorce 
is  not  ('(juivalent  to  a  lindinu  that  he  has  not  committed 
adultery.  {Churcli  v.  C/iiin-li.  7  N.  Y.  St.  Rep.  177). 
A  divorce  can  only  be  <j,rnnted  for  the  same  adultery 
which  is  charged  in  the  complaint.  (liokcl  v.  liokcl,  li 
Edw.  Ch.  376).  But  in  MitcheU  v.  Mitchell  (61  N.  Y. 
398),  where  the  adultery  was  charged  in  a  very  general 
way  in  the  complaint,  the  court  affirmed  a  judgment 
for  the  plaintiff,  although  it  was  not  clear  that  the 
adultery  proved  was  the  precise  one  charged ;  in  that 
case,  however,  the  defendant  had  answered,  and  there 
had  been  a  trial  upon  the  merits  before  the  referee. 

It  was  formerly  held  that  a  co-respondent  could  not 
be  made  a  party  on  her  own  application  (Quiglcy  v. 
Quigley,  45  Hun,  23)  ;  although  in  Claij  v.  Claij  .(21 
Hun,  600,  disapproved  Duilij  Rcf/.  Feb.  11,  1881),  the 
<-ourt  upon  her  application  recjuired  notice  to  be  given 
to  a  co-respondent  of  all  proceedings  and  allowed  her 
to  produce  and  to  cross-examine  witnesses;  but,  now, 
by  section  1757  (siipni)  of  the  code,  as  amended  in 
1899,  a  co-respondent  has  the  right  to  intervene.  It 
seemH  that  an  intervening  co-respondent  has  all  the 
rights  of  a  party  to  the  action,  including  the  right  to 
demand  a  trial  by  jury.  {Rum  v.  Rim,  35  Misc.  227). 
In  PoiUon  v.  Poillon  (78  App.  Div.  127),  the  co-re- 
spondent joined  with  defendant  in  an  appeal  from  the 
judgment  of  divorce. 

Sec.    3.    Regulations  with  regard  to  judgment. 

Where  the  action  is  brought  by  the  wife,  the  following 
regulations  apply  to  the  proceedings : 

1.  The  legitimacy  of  any  child  of  the  marriage,  born 
or  begotten  before  the  commencement  of  the  action,  is 
not  affected  by  the  judgment  dissolving  the  marriage. 

2.  The  court  may,  in  the  final  judgment  dissolving  the 
marriage,  require  the  defendant  to  provide  suitably  for 
the  education  and  maintenance  of  the  children  of  the 
marriage,  and  for  the  support  of  plaintiff,  as  justice 
requires,  having  regard  to  the  circumstances  of  the  re- 
spective parties;  and  may,  by  order,  upon  application  of 


.MAT1U.M()NIAI>    ACTIONS.  277 

either  party  to  the  adioii,  and  after  due  notice  to  the 
other,  to  be  given  in  sueh  manner  as  the  court  shall  pre- 
scribe, at  any  time  after  final  judgment,  whether  hereto- 
fore or  hereafter  rendered,  annul,  vary  or  modify  such 
a  direction.  But  no  such  application  shall  be  made  by 
a  defendant  unless  leave  to  make  the  same  shall  have 
been  previously  granted  by  the  court  by  order  made 
upon  or  withtmt  notice  as  the  court  in  its  discretion  nuiy 
deem  proper  after  presentation  to  the  court  of  satis- 
factory proof  that  justice  requires  that  such  an  applica- 
tion should  be  entertained. 

3.  If,  when  final  judgment  is  rendered,  dissolving  the 
marriage,  the  plaintiff  is  the  owner  of  any  real  prop- 
erty ;  or  has,  in  her  possession,  or  under  her  control,  any 
personal  property,  or  thing  in  action,  which  was  left 
with  her  by  the  defendant,  or  acquired  by  her  own 
industry,  or  given  to  her  by  bequest  or  otherwise;  or  if 
she  is  or  may  thereafter  become  entitled  to  any  prop- 
erty, by  the  decease  of  a  relative  intestate,  the  defend- 
ant shall  not  have  any  interest  therein,  absolute  or  con- 
tingent, before  or  after  her  death. 

4.  Where  final  judgment  is  rendered  dissolving  the 
mai'riage,  the  plaintiff's  inchoate  right  of  dower,  in  any 
real  property,  of  which  the  defendant  then  is  or  was 
theretofore  seized,  is  not  affected  by  the  judgment. 
(Co.  Civ.  Proc.  §  1759). 

Where  the  action  is  brought  by  the  husband,  the  fol- 
lowing regulations  apply  to  the  proceedings : 

1.  The  legitimacy  of  a  child,  born  or  begotten  before 
the  commencement  of  the  offense  charged,  is  not  affected 
by  a  judgment  dissolving  the  marriage;  but  the  legiti- 
macy of  any  other  child  of  the  wife  nuiy  be  determined 
as  one  of  the  issues  in  the  action.  In  the  absence  of 
proof  to  the  contrary,  the  legitimacy  of  all  the  children, 
begotten  before  the  commencement  of  the  action,  must 
be  presumed. 

2.  A  judgment  dissolving  the  marriage  does  not  im- 
pair, or  otherwise  affect,  the  plaintiff's  rights  and  inter- 
ests, in  and  to  any  real  or  perscuial  property,  which  the 
defendant  owns  or  possesses,  when  the  judgment  is 
rendered. 


278  I'KACTirE. 

3.  WhiTO  ju«lj>iiu*iit  is  i-ciidcred,  dis«olviu»j;  the  iiiar- 
ria«j:e,  the  defeiidaiit  is  uot  eutilkMl  to  dowci-,  in  any  of 
the  i)hiiiititT's  real  i)roi)erty,  or  to  a  distributive  share  in 
his  personal  property.      ((.'o.  Civ.  Proo.  §  ITOO). 

The  mere  fact  that  the  wife  was  living  in  adultery 
with  another  man  is  uot  sufiicient  proof  of  the  non- 
intercourse  of  the  husband,  upon  which  to  base  a  judg- 
ment that  the  children  are  illegitimate.  Such  a  judg- 
ment with  regard  to  the  status  of  any  parties  should  not 
be  made  upon  mere  probabilities.  {](in  Acrnam  v. 
Yan  Aernam,  6  Chauc.  Sent.  1).  In  the  final  judgment, 
the  court  must  give  proper  directions  as  to  the  custody, 
care  and  education  of  any  children  of  the  marriage,  if 
there  are  any.  (Co.  Civ.  Proc.  §  1771).  It  is  entirely 
in  the  discretion  of  the  court  as  to  which  parent  it  will 
award  the  care  of  the  children.  {Price  v.  Price,  55  N. 
Y.  656;  McKim  v.  McKiiii,  34  Am.  Rep.  694,  note,  698). 
In  deciding  the  question,  the  court  will  consult  mainly 
the  welfare  of  the  children.  (  Wariiiff  v.  Waring,  100 
N.  Y.  570). 

If  the  custody  is  awarded  to  the  wife,  the  award 
ceases  to  be  operative  at  her  death,  and  the  father  then 
becomes  entitled  to  the  custody  of  the  children.  (Mut- 
ter of  Rohinson,  17  Abb.  Pr.  399,  note).  Under  the 
revised  statutes  it  was  held  that  in  an  action  for  a 
limited  divorce,  the  court  might,  after  the  tinal  judg- 
ment, modify  the  provisions  which  were  made  in  it  with 
reference  to  the  care,  custody  and  education  of  the 
children,  by  making  provisions  for  the  payment  of 
money  to  the  wife  for  their  support  in  a  proper  case; 
or  whei-e  none  had  been  made;  or  by  diminishing  the 
amount  allowed  where  the  necessity  for  it  had  expired. 
{Erkenhrach  v.  Erkenhrach,  96  N.  Y.  456;  Kerr  v.  Kerr, 
9  Daly,  517).  But  the  case  of  Erl-enhrach  v.  ErKen- 
hracJi  put  the  power  upon  the  provision  of  the  statute, 
and  held  expressly  that  no  power  existed  to  modify  the 
judgment  in  these  respects,  unless  it  was  given  by  the 
statute.  The  code  as  originally  enacted  did  not  give 
the  court  any  power  to  modify  the  judgment  with  re- 
gard to  the  care  and  custody  and  education  of  the 
children  whei-e  the  action  was  for  an  absolute  divorce. 


MATRIMONIAL   ACTIONS.  279 

Therefore  it  was  supposed  tliat  no  such  power  existed, 
except  so  far  as  the  court  for  i>ood  reason  might  always 
modify  one  of  its  own  judgments  in  a  proper  case.  The 
amendments,  however,  of  sections  1759  and  1771  of  the 
code,  made  by  chapter  891,  Laws  of  1895,  undoubtedly 
give  the  court  the  same  power  to  modify  the  directions 
of  the  final  judgment  with  regard  to  the  custody,  care 
and  education  of  children  which  it  possesses  to  modify 
the  directions  concerning  alimony,  as  hereinafter  stated. 
In  making  an  award  for  the  support  of  the  wife,  it  is 
largely  in  the  discretion  of  the  court ;  it  is  not  a  matter 
of  division  or  apportionment  of  the  property  of  the  de- 
fendant, but  it  is  a  question  of  suitable  support  of  the 
plaintiff,  and  the  extent  of  the  means  of  the  husband  in 
such  cases  is  treated  as  an  important  element  in  the 
measuring  of  the  amount  which  should  be  allowed. 
{Galusha  v.  Galu.sha,  43  Hun,  181;  modified  on  other 
grounds,  116  N.  Y.  635).  In  such  cases  the  allowance 
is  not  limited  to  merely  Avhat  is  necessary  for  the  bare 
support,  but  the  allowance  should  be  such  as  is  reason- 
able and  sufficient  for  the  comfortable  maintenance  of 
the  wife,  having  in  view  the  circumstances  of  the  par- 
ties, and  the  amount  of  the  income  of  the  husband's 
estate  and  the  other  duties  and  burdens  chargeable  upon 
him,  and  the  rank  and  condition  in  life  of  both  of  them. 
{Forrest  v.  Forrest,  25  N.  Y.  501). 

In  Galusha  v.  Galusha  (supra) the  wife  was  allowed 
one-half  of  the  amount  estimated  as  the  probable  income 
of  the  husband.  In  deciding  the  question  of  the  amount 
of  alimony  to  be  allowed,  the  husband's  estate  is  pre- 
sumed to  yield  a  reasonable  income.  {Fo7'rest  v.  For- 
rest, 5  Bosw.  672;  affd.,  24  How.  Pr.  609).  The  court 
can  in  such  cases  take  notice  of  the  rates  of  interest 
usually  received  on  investments.  (Galusha  v.  Galusha, 
supra).  If  it  appears  that  the  husband  had  made  a 
voluntary  assignment  or  disposition  of  some  portion  of 
his  estate  pending  the  suit,  that  fact  will  not  be  allowed 
to  prejudice  the  plaintiff'  in  the  granting  of  alimony. 
(Forrest  v.  Forrest,  8  Bosw.  640).  If  it  has  been  refer- 
red to  a  referee  to  report  as  to  the  amount  of  alimony 
to  be  allowed,  the  court  upon  a  motion  for  alimony  is 


280  I'UACTici;. 

not  1)01111(1  hy  tlu*  tindinus  of  the  referee.  {(iuJlmivr  v. 
(idHin/vr,  4  Laiis.  4T.'>).  The  (m)^-!  has  power  to  order 
the  alimony  to  be  paid  out  of  the  income  of  a  fuixl  held 
in  trnst  for  the  husband.  ['J'lioiiip.soii  v.  'J'lioinp.soii ,  ~)'I 
1 1  nil,  45G).  An  action  in  ecjnity  can  be  bron<;ht  to  sub- 
ject snch  income  to  the  payment  of  alimony.  (  U  ( /- 
iiK/rc  V.  Wetmore,  149  N.  V.  5lM);  Mcdlijitn  v.  M<-(jHi/iin, 
87  Misc.  12).  The  judjiinent  in  snch  action  may  con- 
tain a  provision  for  its  snbse(iuent  modification,  and  in 
that  case  a  modification  can  be  made  npon  a  change  in 
the  circnmstances  of  the  parties.  (  llrZ/y/orc  v.  Wet- 
more,  162  N.  Y.  503).  Alimony  is  not  usually  allowed 
to  the  wife  for  longer  than  the  joint  lives  of  the  parties. 
{Field  V.  Field,  15  Abb.  N.  C.  434;  Johii.s  v.  Jolin,^,  44 
App.  Div.  533;  affd.  on  op.  below,  166  N.  Y.  613).  But 
the  court  has  power  to  insert  such  provisions  in  the 
judgment  as  will  secure  the  i)ayment  to  the  wife  for  her 
life,  although  she  may  outlive  the  husband.  (Burr  v. 
Burr,  10  Paige,  20 ;  7  Ilill,  207  ) .  In  (hiUisha  v.  Galusha 
(43  Hun,  181)  it  was  held  that  the  court  in  Field  v. 
Fi<'ld  {supra)  were  in  error  in  saying  that  the  question 
of  the  power  of  the  court  to  award  alimony  during  the 
life  Oi  the  wife  after  the  husbamrs  death  was  not  ad- 
judicated in  Burr  v.  Burr  (supra);  it  appears  by 
the  report  of  the  case  last  cited  (10  Paige,  37) 
that  the  chancellor  says  ''that  the  objection  that  the 
vice-chancellor  was  not  authorized  to  decree  a  provision 
for  the  alimony  of  the  wife,  which  should  continue  be- 
yond the  life  of  her  husband  is  clearly  untenable;"  and 
the  chancellor  then  proccH'ds  to  give  reasons  for  that 
])osition.  Rut  in  order  that  alimony  may  continue  be- 
yond the  joint  lives  of  the  parties,  the  intention  must  be 
unequivocally  expressed  in  the  judgment.  (Johns  v. 
Johns,  supra).  If  the  action  is  brought  by  the  wife, 
the  court  has  no  power  to  re<|nire  a  release  of  her  dower 
in  a  final  judgment.  (Forrest  v.  Forrest,  6  Duer,  102; 
('rain  v.  Carana,  36  P.arb.  410).  If  the  judgment  con- 
tains no  mention  of  alimony  it  will  be  deemed  to  have 
been  refused.  [Kanip  v.  Kamp,  59  N.  Y.  212).  Prior 
to  the  year  1894  tluM-e  was  no  power  in  the  court  to 
modify  the  judgment  with  regard  to  the  granting  of  ali- 


MATRIMONIAL   ACTIONS.  281 

mony  after  it  had  once  beeu  entered.  (Kamp  v.  Kanip, 
supra;  Wells  v.  Wells,  10  N.  Y.  St.  Kep.  248)  ;  unless  to 
correct  an  error  arising  from  inadvertence  (Lijiide  v. 
Lyude,  162  N.  Y.  405),  or  unless  in  the  judgment  the 
right  was  expressly  granted  to  make  a  subsequent  appli- 
cati(in  concerning  alimony.  {Galuslui  v.  Gahosha,  138 
N.  Y.  272,  2S^;^H(n(sheld  v.  HausheU,  33  App.  Div. 
29()).  But  by  chapter  728  of  the  Laws  of  1894  section 
1759  of  the  code  was  amended  so  as  to  give  the  court  the 
power,  upon  the  application  of  the  plaintitf,  to  modify 
the  directions  of  the  final  judgment  respecting  plain- 
tiff's support  or  the  education  and  maintenance  of  chil- 
dren. Ji\  chapter  891  of  the  Laws  1895  the  power  was 
given  thus  to  modify  upon  the  application  of  either 
party.  It  was  held  that  these  amendments  were  not 
intended  to  apply  to  judgments  previously  rendered. 
{WaRer  v.  Mallier,  155  N^  Y.  77).  By  chapter  742  of 
the  Laws  1900  section  1759  was  again  amended  so  as  to 
give  the  court  the  power  to  annul,  vary  or  modify  such 
directions  of  a  final  judgment  whether  theretofore  or 
thereafter  granted.  But  in  Liringston  v.  Liringston 
(173  N.  Y.  377)  the  amendment  of  1900  was  declared 
unconstitutional  so  far  as  it  attempted  to  confer  a 
power  upon  the  court  to  affect  judgments  rendered  be- 
fore the  amendment,  the  court  holding  the  right  to  de- 
mand alimony  under  the  judgment  to  be  the  vested 
property  of  plaintiff,  of  which  the  legislature  is  power- 
less to  deprive  her.  Alimony  is  not,  how^ever,  property 
in  such  a  sense  that  it  can  be  appropriated  to  the  pay- 
ment of  a  debt  of  the  wife  existing  prior  to  the  date  of 
the  decree.  (Roniaine  v.  Vhauncey,  129  N.  Y.  566).  It 
is  in  the  discretion  of  the  court  to  provide  that  alimony 
be  paid  from  the  time  the  action  was  begun.  {McCarthy 
V.  McCarthy,  143  N.  Y.  235). 

By  chapter  339  of  the  laws  of  1904  (taking  effect  Sept. 
1,  1904),  section  1771  was  amended  b}'  the  addition  of 
the  following  clause :  Where  an  action  is  brought  by  a 
wife,  as  prescribed  in  article  2  of  title  1  of  chapter  XV 
of  the  code  (for  divorce),  and  a  final  judgment  of  di- 
vorce has  been  rendered  in  her  favor,  the  court,  upon 
the  application  of  the  defendant  on  notice,  and  on  proof 


282  PRACTICE. 

of  the  niai'i'iage  of  the  pliiintiff  after  such  final  judg- 
ment, must  by  ordei-  modify  such  final  juilgmcnt  ami 
any  orders  maide  with  respect  thereto,  l)y  annulling  the 
provisions  of  such  tinal  jn«lgmeuts  or  orders,  or  of  both 
directing  payments  of  money  for  the  support  of  the 
l)laintiif.  It  will  be  noted  that  the  language  of  this 
amendment  is  mandatory;  ami  it  would  seem  to  work  a 
decided  chauge  iu  the  law  ou  this  subject. 

The  final  judgment  in  such  an  action  may  award 
costs,  in  favor  of  or  against  either  party,  and  an  execu- 
tion may  be  issued  for  the  collection  thereof,  as  in  an 
ordinary  case;  or  the  court  may,  in  the  judgment,  or  b^-^ 
an  order  made  at  any  time,  direct  the  costs  to  be  paid 
out  of  any  property  sequestered,  oi*  otherwise  in  the 
power  of  the  court.      (Co.  Civ.  Proc.  §  1769). 

Section  1769  further  provides  that  the  court,  in  an 
action  for  a  divorce  or  separation,  may,  in  its  discretion, 
during  the  pendency  of  the  action,  from  time  to  time 
make  and  modify  an  order  or  orders  riMpiiring  the  hus- 
band to  ])ay  any  sum  or  sums  of  money  necessary  to  en- 
able the  wife  to  carry  on  or  defend  the  action.  In 
Griffiu  v.  Griffin  (47  N.  Y.  134),  which  was  an  action  by 
the  husband  to  annul  a  uuirriage,  the  court  held  that,  by 
virtue  of  its  general  equity  pow-ers,  it  could,  in  the  final 
judgment,  award  the  successful  wife  extra  expenses  and 
counsel  fees,  theretofore  expended  or  incui-red  by  her, 
beyond  the  taxable  costs.  But  the  jurisdiction  of  the 
courts  in  annulment  actions  is  said  to  be  inherent  in  it 
as  a  part  of  its  ecjuitable  jui-isdiction,  as  we  have  seen 
heretofore;  the  jurisdiction  in  divorce  actions,  on  the 
other  hand,  is  purely  statutory,  and  section  1769  con- 
tains the  only  provision  for  allowances  to  the  wife,  and 
it  is  now^  settled  beyond  all  doubt  that  no  allowance  can 
b(^  made  for  pa-'^t  expenses ;  the  object  of  the  code  pro- 
vision as  to  allowances  is  to  enable  her  to  carry  on  or  de- 
fend the  action,  and  whei-e  she  has  been  able  to  do  that 
from  hei'  own  resources  or  upon  her  ow!i  credit,  there  is 
no  statutory  provision  for  her  reind)ursement.  {  Bead- 
leston  V.  Beadleston,  103  N.  Y.  402;  McCarthy  y.  Mc- 
(Uirthji,  137  N.  Y.  500;  ]*oiUon  v.  Poilhm,  75  App.  Div. 
536).' 


MATRIMONIAL   ACTIONS.  283 

In  this  comiectiou  it  is  to  be  further  noted  that  the 
amendments  of  11103,  introducing  the  decree  nis't^  di- 
rects, among-  otlier  things,  tliat  the  interlocutory  judg- 
ment may,  in  the  discretion  of  the  court,  provide  for  the 
payment  of  alimony  until  the  entry  of  final  judgment; 
that  it  may  include  a  judgment  for  costs,  when  costs 
are  awarded,  in  which  case  said  judgment  for  costs  shall 
be  docketed  by  the  clerk,  and  thereupon  shall  have  the 
same  force  and  effect  as  if  docketed  upon  the  entry  of 
final  judgment  therein,  except  that  it  shall  not  be  en- 
forcible  by  execution  or  punishment  until  the  entry  of 
final  judgment  in  said  action.  (Co.  Civ.  Proc.  §  1774, 
as  amended  l)y  chap.  488,  L.  1903). 

Where  a  nuirriage  is  dissolved,  as  prescribed  in  this 
article,  the  plaintiff  may  marry  again,  during  the  life- 
time of  the  defendant;  but  a  defendant,  adjudged  to  be 
guilty  of  adultery,  shall  not  marry  again,  until  the 
death  of  the  plaintiff.  But  this  section  does  not  pre- 
vent the  remarriage  of  the  parties  to  the  action.  (Co. 
Civ.  Proc.  §  1761). 

This  provision  has  no  extraterritorial  effect;  and  a 
second  marriage  contracted  by  the  guilty  party  in  an- 
other state  is  not  void  although  it  is  forbidden  by  this 
section.  {Kerrison  v.  Kerrisou,  8  Abb.  N.  C.  444;  Van 
Toorhis  v.  BrinfnaU,  80  N.  Y.  18).  Marshall  v.  Mar- 
shall (2  Hun,  238)  is  overruled.  Neither  is  it  a  con- 
tempt of  court  for  the  guilty  party  to  contract  such  a 
nmrriage  out  of  the  state.  (Thorp  v.  TJiorp,  90  N.  Y. 
602).  A  marriage,  however,  contracted  by  the  guilty 
party  in  defiance  of  this  prohibition  within  the  state  is 
not  valid.  {Cropscij  v.  (>(/(Icii,  11  N.  Y.  288).  The  sec- 
tion of  the  revised  statutes  respecting  the  same  subject 
was  excepted  from  repeal  by  the  repealing  act  of  1880 
and  is  still  in  force  (2  Kev.  Stat.  146,  §  49;  Laws  of 
1897,  chap.  452)  and  provides  that  the  complainant 
may  marry  again  during  the  lifetime  of  the  defendant, 
after  a  judgment  of  absolute  divorce;  but  that  no  de- 
fendant convicted  of  adultery  shall  marry  again  until 
the  death  of  the  complainant,  unless  the  court  in  which 
the  judgment  of  divorce  was  rendered,  shall  in  that 
respect  modify  such  judgment ;  which  modification  shall 


_'S1  I'K.U  ricE. 

only  be  made  upon  sat islactoi-y  inoof  that  live  years 
have  ehipsed  since  the  detree  of  divorce  was  rendered, 
and  that  the  conduct  of  the  defendant  since  the  dissolu- 
tion of  the  niarriaii-e  lias  been  uniformly  .i>ood.  (Miai)- 
ter  451*,  Laws  of  1S!)7,  struck  out  the  reiiuirement  that 
plaintiti:"  should  have  remarried.  The  proper  mode  of 
ai)idying-  to  the  court  for  leave  to  marry  under  the  pro- 
visions of  this  statute,  is  by  petition  showing  that  the 
facts  exist  which  permit  the  court  to  authorize  such  a 
marriage  to  be  made.  This  petition  should  be  verified. 
The  court  may  direct  notice  to  be  given  to  any  person 
A\ho  is  likely  to  be  affected  by  the  order.  In  Greene's 
Ca.sc  (8  Abb.  X.  (\  450)  the  court  referred  the  petition 
to  a  referee  with  directions  to  take  proof  and  report  the 
testimony  and  his  opinion  to  the  court;  and  with  the 
furtlier  direction  that  the  petition  might  be  brought  to 
a  hearing  on  five  days'  notice  to  the  parties  who  had  ap- 
peared to  oppose  the  application.  It  would  seem  that 
in  all  cases  it  is  advisable  that  notice  of  the  proceedings 
for  the  application  should  be  given  to  the  opposing 
party  in  the  action.  Proceedings  upon  the  coming  in 
of  the  referee's  report  are  the  same  as  those  which  are 
had  upon  any  otluM-  incidental  reference.  If  it  api)ears 
from  that  report  that  the  facts  exist  which  authorize  the 
court  to  pei'mit  a  new  marriage  to  be  made,  such  leave 
will  be  given.  (Peck  v.  PerL\  S  Abb.  N.  C.  400).  A 
judgment  for  a  divorce  may  be  set  aside  for  fraud  or  for 
the  failure  of  the  court  to  get  jurisdiction  or  for  collu- 
sion or  irrr'gularity  affecting  th«'  jurisdiction.  (Wort- 
man  V.  Worfnidii,  IT  Abb.  Pr.  66;  Hinger  v.  dinger,  41 
Harb.  131);  Mcffurf/e  v.  Mefjarf/c,  '2  Wk.  Dig.  352).  An 
api)lication  to  set  aside  the  judgment  should  be  made 
upon  motion  and  not  by  a  new  action.  (Mefjarge  v. 
Mef/ar(/e,  .s///>/(/ |.  P>ut  it  cannot  be  made  by  motion 
after  plaintiff's  death.  (Groh  v.  (Sroli,  35  Misc.  354). 
Such  an  application  may  be  made  after  the  prevailing 
party  has  married  again.  iWorimmi  v.  Wortman, 
Knjn-a).  If  made  foi-  irregularity  it  should  be  made 
within  one  year,  or  it  will  be  denied  for  laches, 
{Schmidt  V.  Selniiidf,  1  Wk.  Dig.  24).  Where  such  ap- 
l»lication    is   made,    it    will    be   granted   only    for   good 


MATRIMONIAL   ACTIONS.  285 

reason,  and  after  careful  and  <;rave  consideration. 
{Wortinaii  V.  W'ortnuiii^  ^iipra;  see  also  Crocker  v. 
Crocker,  Sheld.  257).  One  who  has  married  a  person 
divorced  with  leave  to  marry  again,  cannot  maintain  an 
action  to  set  aside  the  judgment  of  divorce  for  fraud  or 
collusion,  if  the  court  has  jurisdiction.  {Ruger  v. 
£recA:e/,  85N.  Y.  483). 


ARTICLE  IV. 

ACTION  FOR  SEPARATION. 

SECTION, 

1.  For  what  causes  an  action  for  a  separation  may  be  maintained. 

2.  Who  may  bring  such  an  action. 

3.  Pleadings. 

4.  Proceedings  in  the  action. 

Sec.    1.    For   Avhat   causes   an   action  for  a   separation  may  be 
maintained. 

In  either  of  the  cases  specified  in  section  1763  an 
action  may  be  maintained,  by  a  husband  or  wife,  against 
the  other  party  to  the  marriage,  to  procure  a  judgment, 
separating  the  parties  from  bed  and  board,  forever,  or 
for  a  limited  time,  for  either  of  the  following  causes : 

1.  The  cruel  and  inhuman  treatment  of  the  plaintiff 
by  the  defendant. 

2.  Such  conduct,  on  the  part  of  the  defendant  towards 
the  plaintiff,  as  may  render  it  unsafe  and  improper  for 
the  former  to  cohabit  with  the  latter. 

3.  The  abandonment  of  the  plaintiff  by  the  defendant. 

4.  Where  the  wife  is  plaintiff,  the  neglect  or  refusal 
of  the  defendant  to  provide  for  her.  (Co,  Civ.  Proc. 
§  1762). 

The  court  can  only  adjudge  a  separation  in  the  cases 
in  which  it  is  authorized  to  do  so  by  the  statute.  {Da ins 
v.  Davis,  75  N.  Y.  221 ) .  It  is  well  settled  that  in  actions 
of  this  nature,  a  judgment  of  separation  is  to  be  cau- 
tiously granted,  and  all  these  actions  are  rather  to  be 
checked  than  encouraged.  {Van  Veghten  v.  Van  Vegh- 
ten,  4  Johns.  Ch.  501).  It  may  be  laid  down  as  a  gen- 
eral rule  that  where  the  husband  is  the  plaintiff  in  an 


28G  PRACTICE. 

action  of  this  kind  a  separation  will  he  ••ranli'd  only  in 
a  vciv  strong-  and  plain  case;  because,  if  <»Tanted,  the 
wife  has  no  claim  for  support.  {J*<ilmcr  V.  Palmer,  1 
Paiiie,  127G).  The  conuuou  law  has  given  the  husband  a 
snllicieut  power  over  the  wife  as  to  render  an  interfer- 
ence of  the  court  unnecessary  in  all  ordinary  cases 
[l*crry  v.  Pvn-y,  '1  Paige  501)  ;  and  to  sustain  an  action 
of  that  kind  by  him,  it  is  not  sntticient  to  show  a  single 
act  of  violence  on  the  wife's  i)art  against  him,  or  even  a 
series  of  such  acts,  so  long  as  there  is  no  reason  to  sup- 
pose that  he  will  not  be  able  to  protect  himself  and  his 
family  by  the  proper  exercise  of  his  marital  power. 
{I'crrij  v.  Perry,  1  Barb.  Ch.  51(5 ).  Repeatedly  forging 
the  husband's  name  to  commercial  paper  is  not  a  ground 
for  the  action  against  the  wife,  in  the  absence  of  evi- 
dence of  a  malevolent  feeling  on  her  part.  {M'eaver  v. 
^Veurer,  74  App.  Div.  591).  The  cause  of  separation 
which  is  mentioned  in  the  second  subdivision,  namely, 
such  conduct  on  the  part  of  the  defendant  towards  the 
plaintiff  as  might  render  it  unsafe  and  improper  for  the 
former  to  cohabit  with  the  latter,  does  not  differ  practi- 
cally from  the  first  cause  which  is  the  cruel  and  in- 
human treatment  of  the  plaintiff  by  the  defendant.  To 
(establish  cruel  and  inhuman  treatment  which  is  suf- 
ficient to  authorize  the  courts  to  decree  a  separation,  it 
must  appear  that  there  is  ill  tr'.'atment  and  personal  in- 
jury, or  a  reasonable  apprehension  of  personal  injury. 
Words  of  menace  accompanied  by  a  probability  of 
bodily  violence  will  be  sufficient;  and  it  may  be  enough 
if  they  are  such  as  inflict  indignity  and  threatened  pain. 
It  will  be  the  duty  of  the  court  to  release  the  suffering 
party  from  continuing  cohabitation  under  such  treat- 
ment. ( Whispell  v.  117/  ispelL  4  Barb.  217 ) .  The  cruelty 
which  entitles  the  injured  party  to  a  divorce  consists 
only  in  that  kind  of  conduct  which  injures  the  life  or 
health  of  the  defendant,  and  renders  cohabitation  un- 
safe; and  a  judgment  of  separation  should  never  be 
allowed  except  for  the  protection  of  the  innocent  party 
from  such  conduct  and  for  the  punishment  of  the  guilty. 
( Perry  v.  Perry,  2  Paige,  501).  But  to  warrant  a  sepa- 
ration the  cruel  and  inhuman  treatment  need  not  consist 


MATRIMONIAL   ACTIONS.  287 

of  injury  to  the  person  of  tlie  plaintiff.  {W'curcr  v. 
Weaccr,  74  App.  Div.  51)1,  594;  ritzixilrick  v.  Fitzpat- 
rick,  21  Misc.  378 ) .  A  person  who  in  the  presence  of  his 
wife,  and  in  spite  of  her  entreaties  unmercifully  beats 
her  children,  inflicts  such  an  injury  to  her  feelings  as  to 
be  cruel  and  inhuman  within  the  meaning  of  the  statute. 
(Bihiii  V.  Bihlii,  17  Abb.  Tr.  19).  A  false  and  malicious 
charge  of  adultery  against  the  wife  is  cruel  and  inhuman 
treatment ;  and  if  it  is  accompanied  with  threats  of  vio- 
lence it  is  sufticient  to  authorize  a  separation.  { Walter- 
mire  v.  Wultermire,  110  N.  Y.  183;  Kennedy  v.  Kenncdij, 
47  N.  Y.  Super.  Ct.  Rep.  56).  But  if  such  charges  are 
made  in  good  faith,  and  especially  if  the  defendant  has 
reasonable  grounds  for  believing  them  to  be  true,  and 
the  threats  which  accompanied  them  were  mere  casual 
ebullitions  of  passion,  and  are  used  to  emphasize  the 
charges  which  he  had  reason  to  believe  true,  and  with- 
out any  real  intention  of  inflicting  bodily  harm,  and  if 
the  plaintiff  had  no  sufficient  reason  for  believing  that 
bodily  harm  would  be  inflicted  upon  her,  she  would  not 
be  entitled  to  a  separation,  because  of  such  charges.  If 
a  husband  has  reason  to  suspect  his  wife  of  infldelitj^,  it 
is  not  cruel  and  inhuman  to  charge  her  with  it,  although 
personal  violence  is  not  justifiable.  {Kennedy  v.  Ken- 
nedy, 73  N.  Y.  369;  Z)e  MeJi  v.  De  Mell,  5  Civ.  Proc.  Rep. 
306;  affd.,  11  N.  Y.  St.  Rep.  291,  and  120  N.  Y.  485). 
Committing  the  wife  to  an  insane  asylum  is  not  a  ground 
for  the  action,  no  evidence  appearing  of  bad  faith  on  the 
husband's  part.  (Kuster  v.  Kuster,  37  Misc.  136).  It 
is  held  in  the  English  cases  that  the  communicating  of 
a  venereal  disease  by  the  husband  to  the  wife  is  cruelty 
only  when  the  disease  is  knowingly  and  wifully  com- 
municated. (Anonymous,  17  Abb.  N.  C.  231,  and  cases 
cited  on  p.  233).  It  is  believed  that  is  not  the  law  of 
this  state;  but  that  where  a  person  has  communicated 
a  venereal  disease  to  his  wife,  that  of  itself,  would  be 
sufficient  to  entitle  her  to  a  separation,  especially  if  her 
health  suffered  from  it ;  and  if  there  were  any  facts  con- 
nected with  the  matter  which  rendered  the  communicat- 
ing of  such  a  disease  excusable,  the  burden  would  be 
upon  the  husband  to  prove  it.      Intoxication,  although 


288 


rUACTUK. 


it  be  frwiueut,  is  not  a  lii-oinul  for  a  separation  (Mason 
V.  Mason,  1  Edw.  Oh.  27.S)  ;  bnt  will  have  weight  in  eon- 
neetion  with  other  faets.  {Ki.smni  v.  Ixissam,  21  App. 
Div.  142).  Nor  is  it  a  sufficient  <•  round  that  the  de- 
fendant frequently  threatens  the  phiintitl  with  bodily 
harm  unless  such  threats  give  rise  to  apprehensions  of 
immediate  personal  violence.  (Mason  v.  Mason,  snpra; 
Kennedy  v.  Kennedy,  78  N.  Y.  301)).  Acts  which  cause 
mere  mental  sulfering  but  which  do  not  atlect  the  health 
of  the  plaintiff  are  not  sufficient  to  entitle  the  plaintiff 
to  a  sepai-ation  (Paisley  v.  Paisley,  2  Law  liull.  0;  De 
Meli  V.  DeMeli,  5  Civ.  Proc.  Kep.  30G;  attd.,  120  N.  Y. 
485)  ;  but  A^here  the  proof  shows  that  the  husband 
habitually  treats  his  wife  with  harshness  and  is  guilty 
of  annoying  and  disgusting  conduct  towards  her,  and 
his  speech  to  her  is  insulting  and  threatening,  so  that 
her  life  is  rendered  unhappy  and  miserable,  and  that 
her  health  suffers  in  consequence,  the  courts  will  lay 
hold  of  very  slight  instances  of  violence  or  slight  rea- 
sons of  apprehended  violence  to  enable  them  to  grant 
a  separation.  (Kelly  v.  Kelly,  Law  Kep.,  2  P.  &  I). 
31,59). 

Separation  will  not  be  granted  simply  because  the 
parties  cannot  live  in  harmony  with  each  other.  (Davis 
v.  Davis,  1  Hun,  444).  Whenever  the  behavior  of  the 
husband  makes  it  appear  that  the  wife  should  leave  his 
house  and  cease  to  cohabit  with  him,  she  may  have  a 
separation,  although  she  has  aband^^ned  him.  (Walter- 
mire  v.  }\'alterniire,  110  N.  Y.  183;  Fitzjxilriclx  v.  Fitz- 
patrirk,  21  Misc.  378).  To  constitute  abandonment  of 
the  j)laintiff  by  the  defendant  as  a  ground  for  a  judicial 
separaticm,  there  must  be  a  final  dei)arture  with  the 
intention  not  to  leturn,  without  any  sufficient  reason 
therefor,  and  without  consent  of  the  other  party.  (Uhl- 
mann  v.  I'hlniann,  17  Abb.  N.  C.  23(),  cases  cited  on  p. 
260 ;  Clearnian  v.  Clearman,  2  N.  Y^.  Supp.  356 ;  s.  c,  18 
N.  Y".  St.  Rep.  272;  Williams  v.  Williams,  130  N.  Y. 
193).  If  the  abandonment  is  by  the  consent  of  the 
opposite  party,  it  will  not  be  ground  to  adjudge  a 
separation.       (De  Meli  v.   De  Meli,  supra:  Simon   v. 


MATKIMUMAL   ACTIUNS.  281) 

Simon,  6  App.  Div.  401);  affd.  on  op.  below,  159  N.  Y. 
541);  J'oircr.s  v.  roiccr^,  33  App.  Div.  126).  A  refusal 
to  live  with  the  wife  is  au  abaudonment,  althoiiij;li  the 
husband  suppni-ts  her.  {Clearmaii  v.  Clearnuin,  supni ). 
Ji^uch  an  abandonment  is  now  sufficient  reason  for  a 
separation.  (Id.).  That  was  not  the  case  under  the 
revised  statutes,  where  abandonment  alone  was  not  a 
sufficient  cause,  but  there  must  have  been  joined  with 
it  a  refusal  by  the  husband  to  support  the  wife.  {At- 
icater  v.  Atiratri-,  53  Barb.  621).  Such  is  not  now  the 
case,  ^^'here  the  wife  left  without  cause,  but  before  the 
action,  came  back  to  the  husband,  and  he  refused  to 
receive  her  or  support  her,  it  was  held  that  she  was 
entitled  to  a  judgment  of  separation.  {M'andell  v. 
Wandcll,  N.  Y.  Daily  Reg.  Aug.  4,  1883;  WiUiams  v. 
Will  id  ins,  130  N.  Y.  11)3). 

Sec.    2.    W^ho  may  bring  such  an.  action. 

Such  an  action  may  be  maintained,  in  either  of  the 
following  cases : 

1.  Where  both  parties  are  residents  of  the  state,  when 
the  action  is  commenced. 

2.  Where  the  parties  were  married  within  the  state, 
and  the  plaintiff  is  a  resident  thereof,  when  the  action  is 
commenced. 

3.  Where  the  parties,  having  been  married  without 
the  state,  have  become  residents  of  the  state,  and  have 
continued  to  be  residents  thereof  at  least  one  year;  and 
the  plaintiff  is  such  a  resident,  when  the  action  is  com- 
menced.     (Co.  Civ.  Proc.  §  1763). 

Where  the  marriage  took  place  out  of  the  state,  it  has 
been  held  the  plaintiff  cannot  maintain  an  action  unless 
she  is  a  resident  of  the  state  at  the  time,  and  unless  both 
parties  have  resided  within  the  state  for  one  year. 
{Rantsdcn  v.  Ranisdcn,  28  Hun,  285;  affd.  on  other 
grounds,  91  N.  Y.  281).  But  a  more  recent  decision 
holds  that  where  l)oth  parties  are  residents,  the  action 
can  be  maintained  without  regard  to  the  length  of  time 
they  have  been  residents,  under  subdivision  1  of  section 
1763 ;  and  that  subdivisions  2  and  3  of  that  section  apply 
19 


290  I'KACTICE. 

ouly  Avhorc  one  party  is  a  uou-resident.  {likrstadt  v. 
Blerdstadt,  29  App.  Div.  210).  Kesidence  under  this 
sectiou  means  the  phice  of  the  permanent  abode  of  the 
parties  as  distiu<;uished  from  their  temporary  residence. 
{De  MeU  v.  De  McJi,  120  N.  Y.  485).  If  a  married 
woman  dwells  within  the  state  when  she  commences  the 
action  against  her  husband  for  a  separation  she  is 
deemed  a  resident  thereof  although  her  husband  lives 
elsewhere.      (Co.  Civ.  Proc.  §  17G8). 

Sec.    3.    Pleadings. 

The  complaint  in  such  an  action  must  specify  particu- 
larly the  nature  and  circumstances  of  the  defendant's 
misconduct,  and  must  set  forth  the  time  and  place  of 
each  act  complained  of,  with  reasonable  certaint.y.  (Co. 
Civ.  Proc.  §  1TG4). 

The  complaint  in  this  action  is  bad  on  demurrer  if  it 
does  not  specify  the  nature  and  circumstances  of  the 
acts  relied  on  to  constitute  the  cruel  and  inhuman  treat- 
ment; and  set  forth  the  times  and  places  where  such 
acts  occurred  with  reasonable  certainty.  {^VaUon  v. 
^yalton,  32  Barb.  203).  It  is  no  answer  to  a  demurrer 
to  say  that  the  defendant  may  move  for  a  bill  of  par- 
ticulars, or  to  make  the  complaint  definite  and  certain. 
(Id.).  Acts  of  violence  towards  other  members  of  the 
family  and  towards  the  servants  are  proper  to  allege 
for  the  purpose  of  showing  the  conduct  on  the  part  of 
the  defendant,  not  only  towards  the  plaintitf,  but 
toward  others  in  the  family,  and  thereby  satisfying  the 
court  that  it  is  unsafe  for  the  plaintiff  to  cohabit  with 
the  defendant.  {Perrij  v.  Perry,  1  Barb.  Ch.  516). 
There  is  no  statutory  requirement  of  the  complaint,  ex- 
cept that  stated  in  the  section  last  quoted ;  and  in  all 
respects  other  than  that,  it  is  governed  by  the  same 
rules  as  the  complaint  in  other  cases.  If  the  complaint 
is  not  sufficiently  specific  the  defendant  may  move  to 
make  it  definite  and  certain,  or  he  would  be  entitled  in 
a  proper  case  to  a  bill  of  particulars. 

The  defendant  may  set  up,  in  justification,  the  mis- 
conduct of  the  plaintiff;  and  if  that  defense  is  estab- 


MATRIMONIAL   ACTIONS.  291 

lished  to  the  satisfaetioii  of  the  court,  the  defendant  is 
entitled  to  judgment.      (Co.  Civ.  Proc.  §  1765). 

The  defendant  may  set  up  as  a  counterclaim  a  cause 
of  action  against  the  plaintiff  for  a  separation  or  for  a 
divorce  (Co.  Civ.  Proc.  §  1770)  ;  and  on  the  proofs  of  the 
facts  set  up  in  the  answer,  the  defendant  would  be  en- 
titled to  a  judgment  of  separation  or  divorce  as  the  case 
might  be;  and  if  the  wife  was  the  defendant,  to  a  rea- 
sonable support  as  though  she  had  been  the  plaintiff  in 
the  action.  (Waltermire  v.  Waltermirej,  110  N.  Y.  183; 
Van  Bentliuyseri  v.  Van  Bcnthuysen,  17  N.  Y.  St.  Rep. 
978).  Defendant  mav  set  up  plaintiff's  adultery  as  a 
counterclaim  and  obtain  a  judgment  of  divorce  thereon. 
(Israel  v.  Israel,  38  Misc.  335).  Whether  defendant 
can  by  Avay  of  counterclaim  have  judgment  annulling 
the  marriage,  such  marriage  being  voidable  only  and 
not  void,  see  Taylor  v.  Taylor  (25  Misc.  566;  63  App. 
Div.  231;  173  N.  Y.  266).  The  defendant  may  set  up 
any  provocation  which  led  to  any  act  of  cruelty  specified 
in  the  complaint  {DeDulsmes  v.  Devaismes,  3  Co.  Rep. 
124)  ;  and  it  is  proper  that  the  answer  should  state  all 
the  reasons  for  and  circumstances  attending  the  mis- 
conduct Avhich  is  alleged,  which  might  justify-  it  or  miti- 
gate it.  (i^ose  v.  i^ose^,  52  Hun,  151).  The  misconduct 
which  will  operate  as  a  defense  to  the  action  for  a 
separation  need  not  necessarily  have  been  the  cause  of 
the  cruelty  in  order  to  be  available  to  the  defendant  as 
a  defense;  and  such  misconduct  is  of  itself  a  bar.  (Doe 
V.  Roe,  23  Hun,  19).  Adultery  of  the  wife  is  such  mis- 
conduct. (Id.).  Defendant  should  not  be  confined  to 
the  proof  of  misconduct  contemporaneous  with  the 
alleged  cruelty,  but  should  be  allowed  to  show  plain- 
tiff's conduct  during  the  previous  married  life.  (Powers 
V.  Powers,  84  App.  Div,  588).  To  constitute  a  defense, 
it  is  not  necessary  that  plaintiff's  misconduct  should  be 
such  as  to  give  defendant  a  cause  of  action  thereon, 
either  for  a  separation  or  for  divorce.  (Pinion  V.  Simon, 
15  Misc.  515;  6  App.  Div.  469;  159  N.  Y.  5^9;  Powers  v. 
Powers,  supra;  Deisler  v.  Deisler,  59  App.  Div.  207). 
A  wife  is  not  guiltv  of  desertion  where  she  offers  to 


-U'2  I'ltACTKl;:. 

rctiiru  lioiut'  but  rt'l'iiscs  to  do  so  when  harsh  and  im- 
reasouable  terms  are  imposed  as  a  condition  of  her 
return.  {W'iHitniis  v.  WiHidiiis,  \'M)  X.  Y.  \*XU .  Con- 
duct on  ihe  i)ail  of  the  wile  towards  the  husband  which 
is  cahuhited  to  ii-ritate  and  ]M'ovoke  him  or  to  excite 
his  jeah>usy  or  to  alienate  liis  affections  fi-om  her  mav 
be  set  up  in  the  answer.  (JJopjnr  v.  IJopjxr,  11  Paige, 
4(1;  Cnnr  v.  Cro/r,  7  Vi\.  Proc.  Kep.  423).  If  the  de- 
fense is  that  tlie  conduct  of  the  i)hnntiff  has  been  eon- 
(,lone«l,  sucli  condonation  must  be  pleaded.  {Roc  v.  Roc, 
14  Him,  612).  Sexual  intercourse  between  the  parties 
after  the  commission  of  the  acts  of  cruel  and  inhuman 
treatment  is  not  necessarily,  as  a  matter  of  law,  con- 
donation by  the  wife.  (Coiv  v.  Coo),  23  N.  Y.  St.  Rep. 
GDI;  Dor  v.  Doc,  52  Ilun,  405).  Condonation  is  only 
conditional  forgiveness,  {/iurr  v.  Burr,  10  Paiiie,  20). 
It  is  always  subject  to  the  condition  that  the  husband 
shall  afterwards  treat  his  wife  with  Cinijugal  kindness. 
Cruelty  which  has  been  condoned  will  be  revived  by  sub- 
sequent acts  of  cruel  and  inhuman  treatment,  which  of 
themselves  would  not  have  been  sufficient  to  justify  a 
separation.  {WJiispcll  v.  W/iispcll,  4  Barb.  217).  See 
on  this  subject  also  article  III,  section  1,  supra.  Upon 
the  trial  of  an  action  for  a  separation,  ])roof  of  former 
acts  which  have  been  condoned  are  competent  and 
material  to  give  character  to  subsequent  acts  and  show 
the  intent  and  purpose  of  the  defc^ndaut  and  the  con- 
tinuance of  such  an  intent.  (  Doc  v.  Doc,  52  Ilun,  405). 
it  is  a  defense  to  the  action  that  a  previous  decree  had 
been  ol)tained  in  a  like  action  and  had  never  been  re- 
voked by  order  of  court.  (JJohby  V.  llohhy,  5  App. 
Div.  496). 

Sec.    4.    Proceedings  in  the  action. 

The  proceedings  in  this  action  are  Ihe  same  as  in 
other  actions,  and  have  l)een  discussed  in  a  former 
article  in  this  chapter.  The  court  shall  in  no  case  onlei' 
the  reference  to  a  referee  nominated  by  either  party  or 
to  a  refer(H'  agreed  upon  by  the  parties,  nor  without 
proof  by  affidavit  conformable  to  the  rules  relating  to 
the  manner  and  the  proof  of  the  service  of  the  summons 


MATUI.MOXIAL    A(  TIONS,  293 

and  complaint.  Notice  of  appearance  and  retainer 
shall  not  be  sufficient  to  excuse  such  proof.  (Genl. 
Kule,  72).  No  judgment  shall  be  made  of  course  b^^ 
the  default  (>f  the  defendant,  or  in  conseciuence  of  any 
neolect  to  appear  at  the  hearing-  of  the  cause,  or  b}'  con- 
sent. Every  such  cause  shall  be  heard  after  the  trial 
of  the  issue,  or  upon  the  coming  in  of  the  proofs  at  a 
special  term  of  the  court.  (Genl.  Kule,  70).  The  pro- 
visions of  general  rule  72  prohibiting  a  reference  to  take 
proof  of  the  facts  where  defendant  fails  to  answer,  are 
not  applicable  to  this  action.  Judgment  cannot  be 
taken  as  of  course  u))on  a  referee's  report  whether  the 
reference  be  to  hear  and  determine  or  to  take  proof  of 
the  facts  upon  defen<lant's  default,  and  judgment  must 
be  rendered  by  the  court.      (Co.  Civ.  Proc.  §  1229). 

As  to  the  granting  (tf  an  order  of  arrest  see  those 
titles  in  volume  I  of  this  work,  and  also  article  III, 
section  2,  .supra.  As  to  the  granting  of  alimony  and 
counsel  fees,  see  article  V,  Uifru. 

This  action  cannot  be  joined  with  an  action  for  a 
divorce  on  the  ground  of  adultery.  (Buclihoh  v.  BiicJi- 
hoh,  1  How.  Pr.  N.  S.  46;  Zoniv.  Zorii,  38  Hun,  67). 
Proceedings  in  these  actions  will  not  be  stayed  be- 
cause the  defendant  has  been  adjudicated  an  habitual 
drunkard,  and  a  committee  of  his  person  and  estate  has 
been  appointed.  ((ircf/f/  v.  (irc</(/,  48  Hun,  451).  Pro- 
ceedings on  default  ai'e  the  same  as  when  the  action  is 
brcnight  for  an  absolute  divorce  (art.  Ill,  §  2,  supra), 
except  that  in  an  action  for  a  separation  a  reference  can 
be  had  to  take  proof  of  the  facts.  The  proctvdings  upon 
such  a  reference  are  stated  in  vol.  II,  pp.  411,  433,  438. 
Exceptions  must  be  filed  to  such  report.  (Vol.  II,  p. 
443).  Where  an  issue  is  joined  in  the  case  the  trial 
is  to  be  had  by  the  court  at  special  term;  a  jury  trial  is 
not  a  matter  of  right.  ( Packard  v.  Packard,  88 
App.  Div.  339).  The  judgment  cannot  be  entered 
without  application  to  the  court.  (Leicellyn  v.  Le- 
icellyn,  1  Law  Bull,  35).  A  judgment  entered  by  con- 
sent is  absolutely  void,  even  though  the  parties  have 
acted  on  the  faith  of  it.  {Dailcji  v.  DaUcy,  9  Misc.  511). 
Upon  this  subject  see  also  article  III,  section  2,  supra. 


29J:  I'ltACTlCE. 

where  the  powers  and  duties  of  the  referee  and  of  the 
court  are  fully  discussed ;  wiiiit  is  said  iu  that  article 
applies  to  an  action  for  a  separation  as  well  as  to  an 
action  for  a  divorce. 

Where  the  action  is  brought  by  the  wife,  the  court 
may,  in  the  final  judgment  of  separation,  give  such 
directions,  as  the  nature  and  circumstances  (►f  the  case 
require.  In  ijarticular,  it  may  compel  the  defendant 
to  provide  suitably  for  the  education  and  maintenance 
of  the  children  of  the  marriage,  and  foi'  the  support  of 
the  plaintiff,  as  justice  re(iuires,  having  regard  to  the 
circumstances  of  the  respective  parties.  And  the  court 
may,  in  such  an  action,  render  a  judgment,  compelling 
the  defendant  to  make  the  provision  specified  in  this 
section,  where,  under  the  circumstances  of  the  cas^  such 
a  judgment  is  proper,  without  rendering  a  judgment  of 
separation.      (Co.  Civ.  Proc.  §  17GG). 

Where  the  husband  brings  his  action  against  the  wife 
and  succeeds,  the  court  has  no  power  to  make  an  allow- 
ance to  the  wife  for  her  support.  {Wariny  v.  ^V(lri)^y, 
100  N.  Y.  570).  Neither  does  such  power  exist,  where, 
being  defendant,  the  husband  establishes  recrimination, 
and  the  wife's  complaint  is  dismissed.  (Palmer  v. 
Palmer,  29  How.  Pr.  390).  It  is  only  when  the  action 
is  brought  by  the  wife  for  a  divorce  or  a  separation,  that 
an  allowance  for  alimony  can  be  made  to  her  upon  the 
final  judgment.  Such  an  allowance  is  only  incidental 
to  an  action  of  that  nature;  and  there  is  no  provision 
for  an  action  by  the  wife  against  her  husband  for  main- 
tenance and  support.  (Ramsdcn  v.  Ramsden,  91  N.  Y, 
281  ;  Daris  v.  Bar  is,  75  Id.  221).  As  to  the  amount  of 
alimony  see  article  III,  section  3,  supra.  It  was  form- 
erly held  that  judgment  as  to  alimony  could  not  be 
modified  after  it  had  once  been  entered  (Kamp  v.  Kamp, 
59  N.  Y.  212;  M'clls  v.  ^ycUs,  10  N.  Y.  St.  Kep.  248), 
but  by  section  1771  of  the  code,  as  amended  by  chapter 
891  of  the  Laws  1895,  the  court  is  given  power,  upon  the 
application  of  either  party,  at  any  time  after  final  judg- 
ment, to  annul,  vary  or  modify  the  directions  for  the 
support  of  the  wife  contained  in  such  judgment.  Al- 
though this  provision  is  contained  in  section  1771,  it 


MATRIMONIAL   ACTIONS.  295 

would  seem  to  be  applicable  to  a  direction  for  the  wife's 
support  under  section  1700.  For  the  effect  of  recent 
legislation  authorizing  a  modification  of  the  final  judg- 
ment, reference  is  made  to  the  cases  cited  in  article  III, 
section  3,  of  this  chapter,  supra,  concerning  the  modifi- 
cation of  a  judgment  of  divorce.  As  to  the  provisions 
for  the  care,  custody  and  education  of  the  children,  see 
article  III,  section  3,  supra.  It  will  be  noticed  that  in 
this  action,  the  court  may  by  order  at  any  time  after 
final  judgment,  vary,  annul  or  modify  any  direction 
given  in  the  judgment  as  to  the  custody,  care  and  educa- 
tion of  any  of  the  children.  (Co.  Civ.  Proc.  §  1771). 
As  to  what  allowances  may  be  made  by  way  of  costs,  see 
article  III,  section  3,  supra. 

On  the  joint  application  of  the  parties,  accompanied 
with  satisfactory  evidence  of  their  reconciliation,  a 
judgment  for  a  separation,  forever,  or  for  a  limited 
period,  rendered  as  prescribed  in  this  article,  may  be 
revoked,  at  any  time,  by  the  court  which  rendered  it, 
subject  to  such  regulations  and  restrictions  as  the  court 
thinks  fit  to  impose.  (Co.  Civ.  Proc.  §  1767).  The 
judgment  can  be  revoked  only  by  order  of  the  court, 
and  not  by  mere  reconciliation  or  cohabitation.  (Jones 
V.  Jones,  90  Hun,  144;  Hohhy  v.  Hobby,  5  App.  Div. 
496). 

ARTICLE  V. 

CUSTODY  OF  CHILDREN  AND  ALLOWANCES  PENDING  ACTION. 

SECTION. 

1.  Custody   and   care  of  children. 

2.  Alimony  and  counsel  fees. 

3.  How  payment  compelled. 

Sec.    1.    Custody  and  care  of  children. 

The  court  may  in  its  discretion  during  the  pendency 
of  an  action  either  for  a  divorce  or  a  separation  from 
time  to  time  make  and  modify  an  order  or  orders  re- 
quiring the  husband  to  provide  suitably  for  the  educa- 
tion and  maintenance  of  the  children  of  the  marriage. 
(Co.  Civ.  Proc.  §  1769).      An  order  made  in  regard  to 


-IM)  I'UAC'i'ici-:. 

the  maintoTianco  of  cliildivn  is,  of  coiirso,  (liscrctioiiary 
aud  so  not  appealable  to  the  court  of  ai)peals.  The 
power  of  the  court  as  to  providiiin-  for  the  care  and 
custody  of  the  children  and  the  consi(h'ral  ions  which 
obtain  in  the  exercise  of  that  power,  upon  rench'iinj^ 
tiual  judgnieut  in  the  action,  are  discussed  in  arti(  le  III, 
section  3,  supra.  The  same  considerations  ai)ply  in 
making  an  orikM*  itcmlcnlc  life.  In  giving  directions 
with  regard  to  the  care  and  custody  of  children,  their 
welfare  is  the  princi])al  thing  to  be  considered.  (  War- 
ing V.  Wariny,  100  \.  V.  570).  Where  the  custody  of 
the  children  is  awarded  to  one  paicnl  during  the  ])en- 
dency  of  the  action,  the  court  may  i'e(|uire  him  to  give 
security  not  to  renu)ve  the  childi*en  from  the  jurisdiction 
of  the  court.  [People  v.  I'aiihlinfj,  15  Uow.  Pr.  167). 
The  application  for  an  order  with  regard  to  the  custody 
and  care  and  sui)port  of  the  children  should  be  by 
motion  on  notice  to  the  opx)osite  party,  and  upon  affi- 
davit showing  all  the  facts  which  ma}'  be  necessar}^  to 
enable  the  court  to  make  a  projx'r  decision  in  the  mat- 
ter. The  opposing  party  may  always  oppose  the  appli- 
cation and  his  affidavits  should  state  whatever  facts  are 
necessary  to  correct  the  statements  in  the  moving  affi- 
davits or  to  enable  the  court  to  come  to  a  correct 
decision. 

Sec.    2.    Alimony  and  connsel  fees. 

Subdivision  1 — In  What  Cases  Allowed, 

The  court  is  authorized  by  statute  where  an  action  is 
brought  either  for  a  divorce  or  a  sei)aration  during  the 
pendency  of  the  action,  to  make  from  time  to  time  such 
order  or  orders  as  may  be  proper  requiring  the  husband 
to  pay  such  sums  of  money  as  are  necessary  to  enable 
the  wife  to  carry  on  or  defend  the  action,  and  for  her 
support;  having  regard  to  the  circumstances  of  the 
respective  parties.      (Co.  Civ.  Proc.  §  1769). 

As  to  the  power  of  the  court  in  actions  to  annul  a 
marriage,  see  article  II,  section  3,  supra.  In  actions  for 
a  divorce  or  a  separation  the  court  has  power  to  make 
an  allowance  to  the  wife,  no  matter  by  whom  the  action 
is  brought;  but  such  power  does  not  exist  where  the 


MATRlxMONIAL   ACTIONS.  297 

action  is  brought  by  the  wife  for  her  support  and  maiu- 
teuauoe  solely.  {Ranisdcii  v.  Rain-silcii,  1)1  N,  Y.  281). 
lu  actions  for  divorce  or  separation  the  power  to  make 
an  allowance  for  alimony  rests  upon  the  statute  solely. 
{Bradlestou  v.  Head  lesion,  103  N.  Y.  402).  At  the 
basis  of  the  exercise  of  the  power,  lies  the  relation  of 
husband  and  wife;  and  if  that  does  not  exist,  the  power 
cannot  be  exercised  [Collins  v.  Collins,  71  N.  Y.  269)  ; 
as  where  it  appears  that  at  the  time  of  the  contract  of 
marriage  with  the  husband,  the  wife  was  under  a  dis- 
ability to  marry.  [Collins  v.  Collins,  80  N.  Y"".  1). 
Alimony  and  allowances  for  expenses  will  not  be 
allowed  in  an  action  for  divorce  brought  by  one  claim- 
ing to  be  the  wife,  where  the  marriage  in  fact  is  denied 
by  the  answer,  until  after  the  actual  existence  of  the 
marital  relation  is  proved  to  the  satisfaction  of  the 
court  or  is  admitted.  The  court,  however,  is  not  limited 
to  the  allegations  of  the  complaint  and  the  denials  of 
the  answer.  If  other  legitimate  proofs  are  submitted 
which  make  out,  in  the  judgment  of  the  court,  a  fair 
presumption  of  the  fact  of  marriage,  it  has  the  power  to 
make  such  allowances.  [Brinklci/  v.  Brinklci/,  50  N.  Y. 
181).  For  the  purpose  of  authorizing  the  court  to 
grant  temporary  alimony,  it  is  not  necessary  that  the 
fact  of  marriage  be  so  conclusively  established  as  is 
required  for  permanent  alimony  or  for  other  ultimate 
purposes  of  the  action.  (Id.).  Where,  however,  the 
marriage  is  alleged  by  the  husband  but  denied  by  the 
wife,  and  the  existence  of  it  is  one  of  the  issues  to  be 
tried  in  the  action,  the  court  has  power  to  allow  alimony 
and  counsel  fee  to  the  wife.  [Starkivcather  v.  Stark- 
weather, 29  Hun,  488).  Although  the  power  exists,  yet 
the  granting  of  allowances  is  discretionary  with  the 
court.  [De  Llantosas  v.  De  Llamosas,  62  N.  Y.  618; 
Jones  V.  Jones,  2  Barb.  Ch.  146).  The  court  has  power 
not  only  to  refuse  the  allowance  but  it  may  for  good 
cause,  discontinue  or  suspend  the  alimony  if  it  has  been 
allowed.  (Jacohson  v.  Jaeohson,  8  N.  Y.  St.  Rep.  383). 
In  actions  for  a  divorce,  if  the  wife  is  the  defendant, 
it  was  held  for  a  long  time,  that  it  was  almost  a  matter 
of  course  to  make  an  allowance  to  her  for  counsel  fee 


298  PRACTICE. 

and  aliniouy  whoro  it  appeared  that  she  was  destitute 
of  means  to  carry  on  lier  suit  and  io  su[>porl  iierseil",  if 
tlie  husband  was  able  to  pay  an  allowance.  {Jones  v. 
Jones,  supra:  Leslie  v.  Leslie,  0  Abb.  i*r.  X.  S.  193). 
But  such  an  allowance  will  not  be  made  until  she  has  by 
answer  or  affidavit  disclosed  her  defense.  {Lewis  v. 
Leiris,  8  Johns.  Ch.  519;  Miller  v.  Miller,  27  Misc.  758). 
The  ancient  rule,  however,  has  Ix^en  somewhat  relaxed 
in  that  regard,  and  it  is  now  said  that  an  allowance  will 
not  be  liranted  to  her  where  there  is  no  (piestion  about 
the  adultery,  although  she  has  put  in  an  answer  denying 
it.  {KockY.  Koch,  42  Barb.  515;  Grilfin  v.  Griffin,  23 
How.  Pr.  189).  Where,  however,  she  denies  on  oath 
the  charge  of  adultery,  she  is  entitled  to  an  allowance 
for  her  support  and  to  enable  her  to  defend  the  action, 
although  affidavits  are  produced  on  the  part  of  the  hus- 
band showing  her  guilt,  unless  her  adultery  is  almost 
conclusively  established.  {Levy  v.  Levy,  29  Misc.  374; 
Glaser  v.  Glaser,  36  Misc.  231).  Where  there  is  a 
serious  contest,  the  question  of  guilt  will  not  be  tried 
by  conflicting  affidavits,  but  the  wife  will  be  allowed  to 
have  an  allowance  that  the  question  may  be  tried  in  the 
ordinary  way  in  which  issues  are  disposed  of.  {Hallock 
V.  Hallock,  4  How.  Pr.  160 ) .  If  the  wife  is  the  plaintiff, 
alimony  and  counsel  fees  are  granted  almost  as  a  matter 
of  course ;  unless  it  appears  ver^-  clearly  that  she  has  no 
cause  of  action ;  or  that  the  defendant  has  no  property ; 
or  that  the  wife  has  sufficient  property  to  enable  her  to 
support  herself  and  to  pay  the  expenses  of  her  action. 
{TJeshrough  v.  Deshrough,  29  Hun,  592;  Miles  v.  Miles, 
6  Wk.  Dig.  559).  ^^'hel•e,  however,  her  husband  being 
defendant,  makes  charges  of  adultery  against  her  in  the 
answer,  which  are  not  denied  by  her,  the  allowance  will 
be  refused.  {Collins  v.  Collins,  71  N.  Y.  269).  So  an 
allowance  will  be  refused  where  she  is  the  plaintiff,  if 
the  charges  of  adultery  are  made  by  her  upon  informa- 
tion and  belief,  and  are  denied,  and  no  proof  of  them  is 
offered  upon  the  motion.  {Monk  v.  Monk,  7  IJobt.  153; 
Wood  V.  Wood,  61  App.  Div.  96,  98.  But  in  such  a 
case,  it  has  been  held  that  the  court  will  alloAv  a  counsel 
fee  if  the  plaintiff  is  unable  to  pay  the  expenses  of  her 


MATUIMOxXIAL   ACTIONS.  299 

action,  althouiili  there  may  be  some  doubt  of  her  success. 
{Brcnnan  v.  Brcnnan,  19  ^Yk.  Dig.  342). 

In  actions  for  a  separation,  alimony  and  counsel  fee 
will  not  be  allowed  unless  the  wife  shows  that  she  has 
a  cause  of  action.  (Browne  v.  Broicne,  9  Civ.  Proc. 
Rep.  180;  Bcrtschy  v.  Bcrtschy,  14  Wk.  Dig.  111).  It 
has  been  the  general  policy  of  the  courts  in  New  York 
city,  of  late  years,  to  deny  alimony  and  counsel  fees  in 
separation  actions  and  leave  the  wife  to  her  summary 
remedies  in  the  police  courts.  (Pafton  v.  Fatton,  13 
Misc.  726 ;  Israel  v.  Israel,  28  Misc.  57 ;  affd.  without  op., 
46  App.  Div.  623).  Alimony-  and  counsel  fee  will  not 
be  allowed  in  a  separation  action  where  it  appears  that 
the  wife  has  property  sullQcient  to  enable  her  to  carry 
on  the  action,  as  well  as  the  means  of  livelihood  {Max- 
weU  V.  Maxwell,  28  Hun,  566)  ;  nor  will  alimony  be 
allowed,  either  in  an  action  of  divorce  or  separation, 
where  the  defendant  has  made  the  wife  a  proper  sup- 
port {Collins  v.  Collins,  80  N.  Y.  1)  ;  nor  where  a  valid 
separation  agreement,  made  through  the  intervention 
of  a  trustee,  and  whereby  a  reasonable  provision  is 
made  for  the  wife's  support,  is  in  force  (Gnihe  v.  Gruhe, 
65  App.  Div.  239)  ;  nor  where  she  has  had  an  allowance 
for  her  support  in  another  action  {McDonougJi  v.  Mc- 
Donough,  26  How.  Pr.  193)  ;  nor  where  she  has  suflfl- 
cient  property  of  her  own  for  her  support,  although  not 
enough  to  pay  the  expenses  of  the  action.  (Bertsehy  v. 
Bertsehif,  supra).  The  mere  fact  that  a  wife,  who  is 
plaintiff  in  an  action  for  divorce,  has  some  separate 
property,  while  it  is  a  circumstance  to  be  considered  in 
measuring  the  amount  of  the  temporary  alimony,  does 
not  bar  her  rights  or  deprive  the  court  of  its  discretion 
upon  her  application  for  such  alimony,  when  it  appears 
that  the  property  did  not  come  from  her  husband,  and 
the  income  therefrom  is  not  so  gTcat  as  to  render  all 
allowance  unnecessary.  (Merritt  v.  Merritt,  99  X.  Y. 
643;  Greene  v.  Greene,  59  App.  Div.  621).  Where  there 
is  a  doubt  of  her  ultimate  success  on  the  papers,  it  seems 
that  it  is  proper  to  give  a  counsel  fee  to  enable  her  to 
try  the  action  although  no  alimony  is  given.  (Douglas 
y."^ Douglas,  13  Abb.  Pr.  N.  S.  291 ;  Masejj  v.  Maseij,  58 


300  ruAcrici:. 

App.  I)iv.  (111)).  And  ill  (he  case  of  a  valid  scjiaralioii 
ai^rcciiiciil,  counsel  fees  may  lie  allowed,  allli(»ii,uli 
alimony  is  denied.  {(Iriihc  v.  (IiiiIk.  sii/ini).  When 
alimony  is  allowed,  the  riiihl  to  have  it  does  not  cease 
by  the  makinii  of  the  referee's  re])ort  in  favor  of  Ihe 
hnsltand,  nor  until  judunient  is  entered  in  the  action 
[Jicddlcsloti  y.  lUadlvslon,  23  \Vk.  Dij;.  305;  Roikiii  v. 
Roium,  3l'  .Misc.  4(m  )  ;  hut  an  order  may  be  made,  undei- 
such  circumstances,  suspendinii  the  payment  of  alimony. 
{Lask  v.  Lusk,  31  Misc.  312).' 

The  court  nmy  re(iuire  the  husband  to  pay  the  neces- 
sary money  to  take  u]>  the  referee's  report,  or  for  any 
other  proper  sjx'citic  purpose  durinii,-  the  suit.  (ScJiloc- 
mcr  V.  tScltloriiitr,  4t)  X.  Y.  S'2).  l>ut  the  court  cannot 
require  the  ])ayment  by  the  husband  of  the  expenses 
necessary  to  be  paid  by  the  wife  in  compellini:,'  him  to 
comply  with  an  order  for  the  payment  of  alimony  which 
has  been  allowed  by  the  judgment.  {McQuien  v.  Mc- 
Quien,  fil  Tlow.  Pr.  280).  Where  the  wife  recovers 
judgment  and  the  husband  appeals  and  procures  a  stay, 
the  court  has  power  to  grant  alimony  pending  the  ap- 
peal and  a  counsel  fee  (McBridc  V.  McBrklr,  55  Hun, 
401;  119  N.  Y.  519;  roiUon  v.  roillon,  75  App.  Div. 
536)  ;  even  though  no  previous  pendente  lite  application 
has  been  made.  {Haddock  V.  Haddock.  75  App.  Div. 
565).  In  such  a  case  it  is  proper  to  provide  that  the 
alimony  thus  gi-anted  shall  be  applied  upon  the  judg- 
ment, if  affirmed.  {Mcliridc  v.  McBridc,  .supra). 
Counsel  fees  may  be  granted  in  case  of  a  wife's  appeal 
from  a  judgment,  where  it  appears  that  the  appeal  is 
in  good  faith  and  for  a  reasonable  cause.  (llalstcd  v. 
Halstcd,  11  Misc.  592).  In  ti.xing  the  counsel  fees  the 
court  may  be  governed  by  its  own  judgment  and  ex- 
perience and  it  is  not  necessary  that  evidence  should  be 
furnished  to  enable  the  amount  to  be  fixed.  ( Z>c 
Lhimosa.s  v.  De  Llamoms,  62  N.  Y.  618).  A  stay  of 
proceedings  obtained  by  the  husband  on  ai)peal  to  the 
court  of  appeals  does  not  affect  the  power  of  the  court  to 
grant  alimony  i)ending  the  appeal.  {Di  Lorenzo  V. 
Di  Lorenzo,  78  App.  Div.  577). 


MATUl.MUMAl.    ACTIONS.  301 

The  power  of  the  court  Uv  make  ano\vaiU'(\s  for  coun- 
sel fees  aud  expenses  is  limited  to  such  sums  as  may  be 
necessary  to  enable  her  to  carry  on  or  defend  the  action. 
Where,  beinij-  defendant,  she  has  succeeded  in  making 
her  defense  from  her  own  resources,  or  upon  her  own 
credit,  it  is  not  projjer  to  grant  her,  before  judgment, 
and  while  the  action  is  pending,  an  order  compelling 
her  husband  to  pay  such  expenses.  Allowances  for  past 
expenses  ought  not  to  be  made  in  such  a  case  unless  it  is 
shoAvn  that  their  payment  is  necessary  to  enable  her  to 
carr}-  on  or  defend  the  action.  ( Bcadlcston  v.  BeadJcs- 
^O7</l03  N.  Y.  Wl;roUh>n  v.  PoiUon,  75  App.  Div.  536). 
As  to  the  proper  amount  to  be  allowed  for  alimony  see 
article  J II,  section  3,  supra. 

Although  it  is  well  settled  that,  pending  the  action, 
the  allowance  for  her  support  will  be  less  than  that 
Avhich  will  be  granted  to  her  after  final  judgment,  yet 
the  husband's  means  and  the  wife's  situation  in  life 
will  be  considered  in  fixing  the  temporary  alimony. 
{Leslie  V.  Leslie,  G  Abb.  Pr.  K.  S.  193;  KandalJ  v.  Ran- 
dal], 29  Misc.  123).  Temporary  alimony  during  the 
pendency  of  the  action  is  usually  limited  to  what  is 
reasonably  necessary  for  the  wife's  support.  [Gcnuoitd 
V.  (teruioiid,  1  Paige,  013).  Sucli  sums  will  be  allowed 
as  the  husband  can  pay,  and  as  will  support  the  wife 
and  enable  her  to  try  the  action.  [Gilbert  v.  Gilbert, 
1  N.  Y.  Hupp.  531;  s!  c,  15  N.  Y.  St.  Rep.  822).  If  it 
should  appear  that  her  health  requires  it,  the  court  has 
power  to  make  an  order  for  an  increased  allowance,  to 
enable  her  to  travel  or  to  take  other  means  to  protect 
her  health.  (Li/nde  v.  Li/iide,  1  Sand.  Ch.  373;  affd.,  2 
Barb.  C'h.  72).  Where  the  Avife  has  made  an  agree- 
ment with  her  lawyer  to  give  him  part  of  the  alimony 
awarded,  the  order  providing  for  such  alimony  and  for 
the  carrying  out  of  such  an  agreement  will  be  reversed, 
without  prejudice  to  another  application.  (Tan  MeeJx 
V.  Van  Meel\  21  App.  Div.  272).  The  court  has  power 
to  modify  any  such  order  from  time  to  time  as  may  be 
necessary.  (Co.  Civ.  Proc.  §  1709).  An  order  reduc- 
ing temporary  alimony  is  appealable  to  the  appellate 


302  PRACTICE. 

(livisiou.  [Daris  v.  Davis,  78  App.  Div.  500 j.  Aliinouy 
rjiiiuot  be  appropriated  by  the  attorney  in  payment  for 
Ic^al  services  or  dishui'seincnls.  {Mailer  of  Holies,  78 
App.  Div.  180).  The  (iiiestiou  of  alimony  and  eounsel 
fees  cannot  be  reserved  until  after  the  trial  of  the  action 
except  with  the  consent  of  the  husband.  {Lonsdale  v. 
Lonsdale,  41  App.  Div.  221).  An  action  for  divorce 
in  which  temporar}-  alimony  has  been  granted  is  a  pre- 
ferred cause.  (Co.  Civ.  Proc.  §  701,  subd.  13).  If  the 
expenses  of  the  action  are  increased  by  any  unusual 
procedure  taken  by  the  husband,  the  allowance  to  the 
wife  may  be  increased.  {Leslie  v.  Leslie,  11  Abb.  Pr. 
N.  H.  311).  The  court  has  power  also  to  diminish  the 
amount  of  the  alimony,  where  the  defendant  refused 
to  attend  the  trial  when  she  was  subpoenaed  to  enable 
herself  to  be  identified,  and  where  her  attornej'  refused 
to  disclose  her  address.  (Jacobson  v.  Jacohson,  8  N.  Y. 
St.  Rep.  383).  So  it  is  proper  to  discontinue  the  pay- 
ment of  alimony  where,  after  it  has  been  granted,  the 
wife  brings  a  suit  for  a  divorce  in  another  state  (Xichols 
V.  Nichols,  12  Hun,  428)  ;  or  where  the  wife  unneces- 
sarily delays  the  prosecution  of  the  suit.  {Foicler  v. 
Fowler,  4  Abb.  Pr.  411).  An  order  denying  alimony 
and  counsel  fee  in  case  the  wife  refuses  to  consent  to  a 
reference,  and  doubling  the  amount  if  the  husband  re- 
fuses, is  unwarranted.  {Patterson  v.  Patterson,  4  App. 
Div.  146). 

Subdivision  2. — Application  for  the  Order. 

The  application  for  alimony  or  counsel  fee  is  to  be 
made  upon  motion  at  a  special  term  on  notice.  It  may 
be  made  upon  petition  or  affidavit.  Formerly  it  was 
supposed  that  it  should  be  made  upon  petition,  but  at 
present  it  is  customary  to  move  upon  affidavits  in  the 
usual  way.  The  application  should  not  usually  be 
made  until  after  the  complaint  lias  been  served  if  the 
wife  is  plaintiff  {Reese  v.  Reese,  2  Co.  Rep.  81)  ;  but 
it  may  be  made  l)efoie;  and  if  so,  the  moving  papers 
should  contain  all  the  facts  necessary  to  show  that  the 
plaintiff  has  a  good  cause  of  action.       {Whitney  v. 


MATRIMONIAL   ACTIONS.  303 

Whitiieij,  22  How.  Pr.  175).  If  the  wife  is  the  defend- 
ant the  application  for  allowances  in  the  action  should 
not  be  made  until  the  answer  has  been  served.  {Lewis 
V.  Lewis,  3  Johns.  Ch.  519).  Where  the  wife  is  the 
plaintiff,  the  papers  should  always  show  that  she  has  a 
good  cause  of  action,  whether  it  be  for  a  divorce  or  for  a 
separation.  And  if  the  allegations  of  the  complaint 
are  on  information  and  belief,  the  affidavit  should  con- 
tain proof  of  the  facts  alleged  in  the  complaint,  and  if 
such  proof  is  not  given,  the  reason  for  the  failure  to  give 
it.  If  the  wife  is  the  defendant,  it  should  show  that 
she  has  a  good  defense  to  the  action.  See  subdivision  1, 
swpra.  The  moving  affidavits  should  also  show  the  cir- 
cumstances, the  property  and  the  earnings  of  the  hus- 
band, and  the  facts  both  with  regard  to  the  situation  of 
the  husband  and  of  the  wife,  to  enable  the  court  to  fix 
the  proper  amount  to  be  allowed.  The  opposing  affi- 
davits may  show  that  the  wife  cannot  possibly  succeed 
in  the  action,  by  disputing  or  disproving  her  cause  of 
action,  and  if  she  has  property,  or  an  allowance  has  been 
granted  to  her,  or  there  are  any  other  facts  tending  to 
show  that  an  allowance  will  not  be  proper,  such  facts 
should  be  stated.  If  the  husband's  circumstances  are 
not  stated  correctly  in  the  moving  affidavits,  the  oppos- 
ing affidavits  should  contain  the  necessary  corrections. 
If  the  affidavits  are  contradictory  the  court  may,  in  its 
discretion,  order  a  reference  to  report  all  the  facts  on 
particular  questions.  The  referee  in  such  a  case  should 
go  into  the  merits  only  so  far  as  to  see  whether  it  is 
proper  that  the  wife  should  have  an  opportunity  to  try 
her  case.  The  whole  action  should  not  be  tried  on  such 
preliminary  reference.  (Fowler  V.  Fowler,  4  Abb.  Pr. 
411).  The  proceedings  before  a  referee  are  sufficiently 
stated  in  volume  II,  pages  410,  et  seq. 

Where  there  is  a  serious  contradiction  in  the  facts,  it 
is  not  unusual  for  the  court  to  deny  the  motion  Avith 
leave  to  the  plaintiff  to  renew  it  upon  new  affidavits; 
or  to  postpone  it  with  leave  to  the  plaintiff  to  tile  an- 
swering affidavits;  and  this  course  is  exceedingly  proper 
wh(M*e  recriminatory  charges  ai-e  made  against  the  wife 
which  she  has  not  had  an  opportunity  to  answer. 


.■>(I4  I'UAc  ricK. 

Si  r.mvisiox  ;{.• — Tin:  ()ui>i:i{. 

Tilt*  urdi'i-  should  lix  tlic  sum  to  he  paid  for  conuscl 
fee  and  aliniouy;  it  should  direct  how  it  shall  he  jtaid, 
and  to  whom.  it  should  also  tix  the  time  from  which 
the  alimony  shall  he^in.  it  mar  lie  granted  to  hegin  at 
the  eommeucemeiit  of  the  action  or  at  any  subsetiueut 
time. 

Sec.    3.    Hoiv   payment    compelled. 

AVlieie  a  judgment  rendered,  or  an  order  made,  as 
prescribed  in  articles  '2,  3  or  4  of  title  1  of  chapter  XV 
of  the  code,  or  a  judgment  for  divorce  or  separation 
rendered  in  another  state  u])on  the  ground  of  adultt^ry 
ni)on  which  an  action  has  been  brought  in  this  state,  and 
jtidgment  rendered  therein  requires  a  husband  to  pro- 
vide for  the  education  or  maintenance  of  any  of  the 
children  of  a  man*iage,  or  for  the  support  of  his  wife,  the 
court  may,  in  its  discretion,  also  direct  him  to  give  rea- 
sonable security,  in  such  a  inanner,  and  within  such  a 
time,  as  it  thinks  proper,  for  the  payment,  from  time  to 
time,  of  the  sums  of  money  required  for  that  purpose. 
If  he  fails  to  give  the  security,  or  to  make  any  payment 
re(|nired  by  the  terms  of  such  a  judgment  or  oi-dei', 
whether  he  has  or  has  not  given  security  therefor;  or  to 
pay  any  sum  of  money  which  he  is  re(|uired  to  pay  by 
an  order,  made  as  presci-ibed  in  section  ITOl)  of  the  cod(% 
the  court  may  cause  his  personal  property,  and  the  rents 
and  profits  of  his  real  pro])erty,  to  be  scHjuestered,  and 
may  appoint  a  receiver  thereof.  The  i-ents  and  profits, 
and  other  property,  so  se(iuestered.  may  be,  from  time 
to  time,  applied,  under  the  direction  of  the  coui-t,  to  the 
payment  of  any  of  the  sums  of  mon(\v,  specified  in  this 
section,  as  justice  requires.      (Co.  Civ.  Proc.  §  1772). 

The  ])rovisions  of  this  section  as  to  judgments  in 
actions  lirought  upon  judgments  of  divorce  or  sejiaration 
rendered  in  another  state,  were  added  by  chapter  318 
of  the  laws  of  1004,  to  take  effect  Septend»er  1,  1004. 

Payment  of  alimony  cannot  be  enforced  by  execution 
under  section  770  of  the  code;  the  only  method  of  en- 
f<»vcing  payment  is  that  ])i'esci'ii>ed  by  sections  1772  and 
1773.  "   (Wchcr  r.  Wchrr,  03  App.  Div.  140). 


MATRIMOxXIAL   ACTIONS.  305 

The  order  directing  the  payment  of  alimony  and 
counsel  fees  must  be  served  on  the  party;  and  no  pro- 
ceeding can  be  taken  to  punish  for  contempt  until  that 
has  been  done.  {i^andford  V.  ^andford,  40  Hun,  540). 
Where  the  motion  is  made  to  sequester  the  defendant's 
property,  it  should  also  appear  that  the  order  for  the 
payment  of  alimony  has  been  served  upon  him  and  that 
the  payment  has  been  demanded.  Sequestration  of  the 
property  was  formerly  the  remedy  provided  for  the 
failure  to  enforce  judgment  for  the  payment  of  alimony 
b}'  proceedings  for  contempt.  Now  the  property  must 
ordinarily  be  sequestered  before  a  resort  to  proceedings 
for  contempt.  (Co.  Civ.  Proc.  §  1773).  The  applica- 
tion for  sequestration  of  the  property  must  be  made  by 
motion  on  notice  and  on  affidavits  showing  that  the 
order  has  been  made  for  the  payment  of  the  money,  and 
served  upon  the  defendant,  and  that  he  has  failed  to 
pa}^  If  the  motion  is  made  for  sequestration,  because 
of  a  failure  to  give  security  which  has  been  ordered,  the 
affidavit  should  show  that  it  has  been  demanded  and 
that  the  defendant  has  failed  or  refused  to  give  it.  A 
motion  can  be  made,  only  hy  the  person  to  whom  the 
payment  has  been  directed  to  be  made.  [Foster  v. 
Townshend,  68  N.  Y.  203).  Under  the  revised  statutes 
on  failure  to  pay,  pursuant  to  the  order  of  tlie  court, 
the  court  was  required  to  direct  the  defendant  to  fur- 
nish security,  and  could  not  sequester  the  property 
until  the  defendant  had  failed  to  obey  that  order  {Davis 
V.  Davis,  1  Hun,  444).  Such  an  order  is  not  now  neces- 
sary; the  court  now  has  power  to  make  an  order 
sequestering  the  propert}^  for  a  failure  to  pay,  without 
requiring  security.  (PcrcivaJ  v.  Fercival,  14  N.  Y.  St. 
Rep.  255;  affd.,  124  N.  Y.  637) .  The  former  practice  to 
procure  sequestration  was  to  ol)tain  an  order  for  that 
purpose,  which  was  a  writ  issuing  out  of  and  under  the 
seal  of  the  court,  directed  to  the  sheriff,  or  to  sequestra- 
tors. The  usual  proceedings  for  sequestration  now  are 
by  a  motion  that  the  i)roperty  be  sequestered  and  by  the 
appointment  of  a  receiver  to  take  possession  of  the  prop- 
erty and  apply  it  pursuant  to  the  order  of  the  court. 
20  ' 


300  PRACTICE. 

A  receiver  appointed  under  .section  1772  must  give  an 
undertakiuii  pursuant  to  section  715  of  the  code;  but  an 
order  ai)poiutinj^  such  a  receiver  witliout  requirinj'-  an 
undertiUcinj*,  is  not  void,  but  merely  voichible.  (Mat- 
ter of  i^picSy  92  App.  Div.  175).  The  receiver  can 
only  take  personal  property  and  the  rents  and 
protits  of  real  property.  (Co.  Civ.  Proc.  §  1772). 
The  title  to  realty  does  not  vest  in  the  receiver; 
as  receiver  of  the  rents  and  protits  he  is  entitled 
to  the  possession  of  the  real  property  as  against  the 
defendant  and  all  claiming  under  him;  but  this  posses- 
sion is  the  possession  of  the  court;  and  his  power  is 
limited  to  such  acts  as  are  specially  authorized  b}'  the 
court.  [Fofiicr  v.  Toimshcnd,  G8  N.  Y.  203).  He 
cannot  maiutain  an  action  to  subject  the  surplus  in- 
come of  property  held  in  trust  for  the  husband  to  the 
payment  of  alimony  awarded  b}^  final  judgment  (Con- 
tinental Tr.  Co.  V.  Wetmore,  67  Ilun,  9)  ;  but  the  wife 
can  maintain  such  action,  to  enforce  payment  of  ali- 
mony, both  past  due  and  to  accrue,  all  other  remedies 
having  been  exhausted  (Wetniore  v.  Wetmore,  149  N.  Y. 
520;  102  N.  Y.  503),  and  can  maintain  such  action  for 
the  collection  of  alimony  awarded  pendente  lite.  (Mc- 
Glynn  v.  McGlynn,  37  Misc.  12).  But  it  seems  that  the 
wife  cannot  resort  to  a  third-party  order  in  supple- 
mentary proceedings  where  a  receiver  has  already  been 
appointed  under  section  1772.  (Bucl-i  v.  Buelxi,  26 
^lisc.  09).  Before  bringing  an  action  the  wife  must 
first  have  exhausted  all  ordinary  remedies  for  enforcing 
the  decree.      (Halsted  v.  HaJated,  21  App.  Div.  460). 

Where  the  husband  makes  default  in  paying  any  sum 
of  money  specified  in  section  1772  as  required  by  the 
judgment  or  order  directing  the  payment  thereof;  and 
it  appears  presumptively,  to  the  satisfaction  of  the 
court,  that  payment  cannot  be  enforced  by  means  of  the 
proceedings  prescribed  in  section  1772  or  by  resorting 
to  the  security,  if  any,  given  as  therein  prescribed,  the 
court  may,  in  its  discretion,  make  an  order  requiring 
the  husband  to  show  cause  before  it,  at  a  time  and  place 
therein  specified,  why  he  should  not  be  punished  for  his 
failure  to  make  the  payment;  and  thereupon  proceedings 


MATKIMUNIAL   ACTIONS.  307 

must  be  taken  to  piiuisli  him,  as  prescribed  iii  title  3  of 
chapter  XVII  of  the  code.  Such  an  order  to  show  cause 
may  also  be  made,  without  am'  previous  sequestration, 
or  direction  to  give  security,  where  the  court  is  satisfied 
that  they  would  be  ineffectual.  (Co.  Civ.  Proc.  §  1773). 
The  proceedings  to  punish  for  contempt  as  provided 
for  in  this  section  cannot  be  taken  until  it  appears  to 
the  satisfaction  of  the  court  that  payment  cannot  be 
compelled  in  the  manner  provided  for  in  section  1772; 
but  if  the  court  is  satisfied  that  the  proceedings  by  giv- 
ing security  or  by  sequestration  are  useless,  and  so 
determines,  it  may  commit  for  contempt,  without  resort- 
ing to  such  proceedings.  { Isaacs  v.  Isaacs,  61  How. 
Pr.  369;  10  Daly,  306).  If  the  defendant  has  been  im- 
prisoned and  discharged  he  cannot  again  be  imprisoned 
for  the  non-payment  of  alimony  in  the  same  action. 
(^Vi^ltoll  V.  Wiiiton^  53  Hun,  4;  affd.  on  op.  below,  117 
N.  Y.  623).  A  second  order  punishing  the  defendant 
for  contempt  cannot  be  made  while  he  is  imprisoned 
under  the  first  order.  {Mendel  v.  Mendel,  6  N.  Y.  St. 
Rep.  511).  The  inability  of  the  defendant  to  pay  the 
alimony  ordered  is  no  excuse.  The  order  for  the  paj^- 
ment  is  an  adjudication  upon  that  subject.  (Strohridyc 
V.  ^trobridge,  21  Hun,  288).  If  the  defendant  is  un- 
able to  pay,  an  application  for  relief  from  the  order 
must  be  made  at  special  term  upon  motion  upon  notice 
to  the  adverse  party.  {^tre^hridge  v.  ^trohridge, 
supra).  It  was  held  in  the  earlier  cases  that,  as  a 
penalty  for  a  failure  to  comply  with  the  order  for  the 
payment  of  the  money,  the  court  could  strike  out  the 
answer  of  the  defendant,  and  direct  the  case  to  proceed 
as  though  default  had  been  made  {Walker  v.  Walker, 
82  N.  Y.  260),  but  in  Sihleg  v.  Sihlcy  (76  App.  Div. 
132),  following  Hoveg  V.  Elliott  (167  U.  S.  409),  such 
power  is  denied,  on  the  ground  that  by  its  exercise  de- 
fendant is  deprived  of  his  property  without  due  process 
of  law.  Giving  the  undertaking  on  appeal  in  the  man- 
ner prescribed  by  section  1327  of  the  code  (vol.  II,  p. 
797)  stays  all  proceedings  to  enforce  the  payment  of 
alimony,  {f^amuels  v.  Sanruels,  1  N.  Y.  Supp.  787; 
s.  c,  17  N.  Y.  St.  Rep.  680).     But  temporary  alimony 


oU8  I'KAc  "iici:. 

iiijiy,  nevei'tlieless,  be  allowed  peudini;-  the  apjx'al.  [Di 
Loicii.zi)  V.  Di  Lorenzo,  lH  App.  i)iv.  577.  It  was  i'onu- 
erly  held  that  all  these  code  provisious,  as  to  enforee- 
iiieiit  of  alinioiiy  provisions,  did  Dot  apply  to  a  foreign 
judi^ment  of  divorce  [Lijiulc  V.  Lyndc,  102  N.  Y.  405; 
181  U.  iS.  183) ;  but,  as  has  been  noted,  the  amendment 
of  11)04  to  section  1772  makes  the  section  apply  to  jvidj;- 
ments  in  actions  on  judj^ments  of  divorce  or  separation 
rendered  in  another  state. 


CHAPTER  LVI. 

ACTIONS  RELATING  TO  CORPORATIONS. 


ARTICLE  I Actions   by   or   against  corporations. 

ARTICLE  II... To  dissolve  a  corporation  or  enforce  liability  of  officer. 
ARTICLE  III .  .  To  annul  a  corporation. 


ARTICLE  I. 

ACTIONS   BY    OR   AGAINST   CORPORATIONS. 

SECTION. 

1.  Cases  in  which  action  may  be  brought. 

2.  Pleadings  and  proceedings. 

Sec.    1.    Cases  in  \irhicli  action  may  be  brouglit. 

Subdivision  1. — By  or  Against  Domestic  Corporation. 

A  "  domestic  corporation  "  is  a  corporation  created 
by  or  under  the  laws  of  the  state;  or  located  in  the  state, 
and  created  by  or  under  the  laws  of  the  United  States, 
or  by  or  pursuant  to  the  laws,  in  force  in  the  colony  of 
New  York,  before  the  19th  day  of  April,  in  the  year 
1775.  Every  other  corporation  is  a  ""  foreign  corpora- 
tion."     (Co.Vjiv.  Proc.  §  3343,  subd.  IS). 

It  is  usual  in  all  special  acts  creating  corporations, 
and  in  all  general  acts  under  which  corporations  may 
be  organized,  to  insert  a  provision  that  they  may  sue  or 
be  sued  in  the  same  manner  as  a  natural  person.  Such 
a  provision  is  very  comprehensive  in  its  significance, 
and  includes  the  taking  of  any  and  all  of  the  steps  neces- 
sary to  the  prosecution  or  defense  of  an  action  that 
might  be  taken  by  a  natural  person,  and  the  proceedings 
by  which  a  judgment  might  be  enforced  if  the  action 
were  between  natural  persons.  So  it  will  not  be  neces- 
sary to  attempt  any  specification  of  the  cases  where  an 

(309) 


310  rUACTKE. 

actittu  iiiav  he  broiiiilit  by  i>i-  against  a  doineslic  corpo- 
ration. Wlici'e  the  corporal  ion  is  ^ivcii  the  privilcjic 
of  suiiiii-  or  bciiiii  sued,  it  is  iiniiialcrial  wliclhci'  llic 
other  i)arl,v  to  the  action  is  a  natural  person  or  anotliei- 
corporaticMi.  A  domestic  corporation  may  brinj^  an 
action  against  a  foreign  corporation  for  any  cause  of 
action.  (Co.  Civ.  Proc.  §  1780).  The  action  against 
foreign  corporations  will  be  more  fully  treated  of  in 
the  following  subdivision  of  this  section. 

The  fact  that  one  of  the  i)arties  to  an  action  is  a 
domestic  corporation  does  not  modify  or  change  the 
rights  of  the  parties  to  the  action,  excepting  so  far  as 
the  right  of  action  itself,  or  the  particular  mode  of 
enforcing  the  remedy  is  prescribed  by  special  statutory 
regulations.  An  action  to  compel  a  determination  of 
a  claim  to  real  projierty  may  be  maintained  by  or 
against  a  corporation  as  if  it  were  a  natural  person. 
(Co.  Civ.  Troc.  §  1650).  But  where  a  judgment-debtor 
is  a  corporation,  the  creditor  cannot  bring  a  judgment- 
creditor's  action  (Co.  Civ.  Proc.  §  1871))  ;  but  his  remedy 
in  such  case  is  by  an  action  to  obtain  a  judgment  to 
se(iuester  the  property  of  the  corporation  under  section 
1781  of  the  code.  (See  article  II,  section  1,  infra). 
Whether  a  statute  using  only  the  word  "  corporation  " 
applies  to  a  foreign,  as  well  as  a  domestic,  corporation, 
must  be  determined  by  its  applicability  thereto,  accord- 
ing to  the  nature  of  the  provisions  of  the  statute.  ( See 
Miller  V.  BarJoia,  88  App.  Div.  520,  and  niinpion  V. 
Bifjcloio,  93  N.  Y.  592). 

What  particular  state  of  facts  will  constitute  a  cause 
of  action  in  favor  of  or  against  a  cor])oration,  whether 
domestic  or  foreign,  being  a  matter  of  i)ositive  law  and 
not  of  practice,  it  does  not  fall  within  the  scope  of  this 
book.  The  general  or  special  statutes  under  or  by 
which  corporations  are  created,  and  their  by-laws,  rules 
and  regulations  are  the  sources  of  the  rights  and  lia- 
bilities of  corporations;  and  as  they  are  the  creation 
and  the  creatures  of  the  law,  there  may  be  imposed  upon 
them  by  the  same  authority  that  creates  them,  certain 
restrictions  or  regulations  as  to  the  manner  in  which 
thev  may  enforce  their  legal  rights,  or  certain  rules  to 


ACTIONS    RELATING    TO    C'OllPOUATIONS.  311 

be  followed  or  observed  in  proceeding  against  them. 
Before  the  enactment  of  the  code,  the  revised  statutes 
contained  the  various  rules  and  regulations  relating  to 
proceedings  b}'  or  against  corporations,  whether  domes- 
tic or  foreign;  but  all  such  rules,  so  far  as  they  have 
been  retained  in  the  law,  are  now  found  contained  in 
the  code  of  civil  procedure. 

Jurisdiction  in  actions  relating  to  corporations  is,  of 
course,  in  the  suin'eme  court  under  its  general  powers; 
so  also  has  the  county  court  jurisdiction  given  to  it  by 
statute  in  such  cases,  where  the  principal  place  of  busi- 
ness of  such  corporation  is  established  within  the 
county.      (Co.  Civ.  Proc.  §  341;  vol.  I,  pp.  72-73). 

The  requirements  as  to  the  service  of  summons  in 
actions  against  corporations  are  specified  in  vol.  I, 
p.  205,  et  scq.  The  same  rules  as  to  place  of  trial  apply 
to  actions  by  or  against  corporations  as  to  actions  by 
or  against  natural  persons.    (See  vol.  II,  p.  134,  et  seq.). 

Subdivision  2. — By  or  Against  Foreign  Corporation. 

An  action  may  be  maintained  by  a  foreign  corpora- 
tion in  like  manner,  and  subject  to  the  same  regulations, 
as  where  the  action  is  brought  by  a  domestic  corpora- 
tion, except  as  otherwise  specially  prescribed  by  law. 
But  a  foreign  corporation  cannot  maintain  an  action, 
founded  upon  an  act,  or  upon  a  liability  or  obligation, 
express  or  implied,  arising  out  of,  or  made  and  entered 
into  in  consideration  of,  an  act,  which  the  laws  of  the 
state  forbid  a  corporation  or  association  of  individuals 
to  do,  without  express  authority  of  law.  This  section 
does  not  affect  the  validity  of  a  meeting  of  the  stock- 
holders or  directors  of  a  foreign  corporation,  held 
within  the  state,  where  such  a  meeting  is  authorized  by 
the  laws  of  the  state,  country,  or  government  by  or  under 
which  the  corporation  is  created;  or  of  an  act,  done  at 
such  a  meeting,  which  is  not  in  conflict  with  the  same 
laws,  or  the  laws  of  the  state.      ( Co.  Civ.  Proc.  §  1779 ) . 

An  action  against  a  foreign  corporation  may  be  main- 
tained by  a  resident  of  the  state,  or  by  a  domestic  cor- 
poration, for  any  cause  of  action.     An  action  against  a 


312  ruACTui:. 

foi'ciiiii  <-(ii'p<)i'nt ion  iiinv  lie  inniiHainod  by  another 
fuivii^n  corporatiou,  or  by  a  uoii-residcut,  in  one  of  tlie 
followin«>-  eases  only: 

1.  \\'here  the  action  is  bron^lit  to  I'ccover  daniajijes 
for  the  breach  of  a  contract,  nia(h>  within  the  state,  or 
relating-  to  property  situated  within  the  state,  at  the 
time  of  the  niakiun'  thci-eof. 

2.  >\'liere  it  is  brought  to  recover  real  property  situ- 
ated within  the  state,  or  a  chattel,  which  is  replevied 
within  the  state. 

3.  Where  the  cause  of  action  arose  within  the  state, 
except  where  the  object  of  the  action  is  to  affect  the  title 
to  real  property  situate<l  without  the  state.  (Co.  Civ. 
Proc.  §  1780). 

As  we  saw  in  the  preceding  subdivision,  all  the  cor- 
porations not  specified  in  subdivision  18  of  section  3343 
of  the  code,  are  foreign  corporations.  A  corporation 
doing  a  discount  business  here  in  violation  of  our 
statutes,  though  authorized  by  the  statutes  of  the  state 
or  country  under  whose  laws  it  Avas  organized,  cannot 
maintain  an  action  in  our  courts  upon  the  illegal  con- 
tract. {Xcif  Hope,  etc.,  Co.  v.  Pouf/hkecpsie  aS'//A:  Co., 
25  Wend.  018).  The  fact  that  a  corporation  cannot 
nmintain  an  action  to  recover  on  a  particular  cause  of 
action,  by  reason  of  some  disability,  does  not  p^'event 
it  from  assigning  such  cause  of  action  to  a  resident  of 
this  state,  who  nuiy  bring  an  action  on  it  notwithstand- 
ing such  disability  of  the  corporation.  It  is  not  a 
fraud  against  our  statutes  for  the  corporation  to  assign 
its  cause  of  action  to  a  resident;  the  statute  did  not 
contemplate  any  interference  with  the  right  to  assign 
choses  in  action.  {McBride  v.  Fanners'  Bank,  26  N.  Y. 
450).  If,  however,  under  the  circumstances  of  a  par- 
ticular case,  such  assignment  is  claimed  to  be  fraudu- 
lent, that  fact  should  be  clearly  shown;  it  will  not  be 
presumed ;  and  where  the  assignment  vested  in  the  as- 
signee a  valid  cause  of  action  against  the  defendant,  his 
motives  in  obtaining  it  cannot  be  inquired  into,  (Id.). 
Of  course,  where  the  purchase  of  a  cause  of  action  is  by 
an  attorney  with  the  purpose  of  bringing  suit,  it  comes 


ACTIONS  RELATING  TO  CORPORATIONS.       313 

within  the  prohibition  of  section  73,  and  the  following 
sections,  of  tlie  code. 

A  foreign  banking  company  coming  into  this  state 
merely  for  the  purpose  of  collecting  a  doubtful  debt, 
does  not  bring  itself  within  the  provision  of  section 
1779  of  the  code,  and  does  not  violate  the  law,  even 
though  while  here  it  draws  bills  of  exchange  or  pays 
out  its  own  circulating  notes.      {Western  Reserve  Bank 
V.  Fatter,  Clarke  Ch.  432).      If  a  foreign  corporation 
took  mortgage  security  in  this  state,  it  may  come  into 
this  state  and  bring  an  action  of  foreclosure,  although 
it  would  not  have  been  lawful  for  a  like  corporation  in 
this  state  to  have  taken  such  security.       (Hilrer  Lake 
Bank  v.  North,  4  Johns.  Ch.  370).      A  foreign  corpora- 
tion, if  required  by  the  adverse  party,  must  give  security 
for  costs;  but  the  giving  of  such  security  is  not  a  con- 
dition precedent  to  its  right  to  sue;  but  is  merely  inci- 
dental to  the  action ;  and  if  desired  by  the  adverse  party 
it  must  be  demanded.      (Co.  Civ.  Proc.  §  3268;  see,  also, 
vol.  II,  p.  518).     The  foreign  corporation  will  be  recog- 
nized here  to  the  same  extent  as  it  will  in  the  state 
where  it  was  incorporated,  so  far  as  its  powers  are  con- 
cerned.     (U.  *S'.  rincgar  Co.  V.  ^cMegeJ,  143  N.  Y.  537; 
O'ReUlij  Co.  V.  Greene,  18  Misc.  423).      Where  a  cause 
of  action  arises  in  this  state,  a  foreign  corporation  has 
the  same  right  to  enforce  its  remedy  and  to  the  same 
extent,  in  the  same  manner  and  with  the  same  priority 
as  a  citizen  of  the  state.       {Hihernia  Natl.   Bank  v. 
Laeomhe,  84  N.  Y.  367).      In  the  case  just  cited  the 
cause  of  action  arose  on  a  New  York  draft  given  by  a 
bank  in  New  Orleans  which  had  since  become  insolvent 
and  had  gone  into  the  hands  of  commissioners  in  the 
state  of  Louisiana,  and  the  draft  was  presented  in  New 
York,  where  the  defendant  had  money  on  deposit,  and 
payment  refused ;  the  court  held  that  the  cause  of  action 
arose    in    New   York,,   although   both   parties   were   of 
Louisiana,  and  that  the  plaintiff  was  entitled  to  enforce 
his  lien  on  the  property  in  this  state,  prior  to  the  rights 
of  the  commissioner  in  Louisiana.    (S.  C,  21  Hun,  166). 
As  to  the  extent  to  which  foreign  corporations  will  be 
allowed  to  sue  resident  stockholder  on  their  stock  lia- 


3U  PRACTICE. 

bility,  sec  Hank  of  (It inn  v.  Morse  (108  N.  Y.  458)  and 
easrs  tlK'i'i.*  cited. 

While  it  is  true  that  no  state  need  allow  the  corpora- 
tions of  other  states  or  nations  to  do  business  within  its 
borders  unless  it  chooses,  with  i)erhai)s  the  excepticni  of 
commercial  corporations;  yet  if  it  does  so  permit  them 
to  come  in  without  limitation  express  or  implied,  the 
corporations  come  in  as  they  were  created.  Every  cor- 
poration necessarily  carries  its  charter  wherever  it  goes, 
for  that  is  the  law  of  its  existence.  It  nuiy  be  restricted 
in  the  use  of  some  of  its  powers  while  doing  business 
away  from  its  corporate  home;  but  every  person  who 
deals  with  it  everywhere  is  bound  to  take  notice  of  the 
provisions  which  have  been  made  in  its  charter  for  the 
management  and  control  of  its  affairs.  (Relfe  v.  Itun- 
dlc,  103  U.  S.  222).  If  the  corporation  has  property 
and  an  office  for  doing  business  in  this  state,  and  agents 
upon  whom  service  of  process  or  papers  can  be  made, 
the  statutes  are  usually  construed  in  support  of  the 
remedies  given  to  corporations  ''  in  "  or  "  within  "  the 
state  as  applicable  to  such  foreign  corporations  as  well 
as  domestic  corporations.  (Wright  v.  Douglass^  10 
Barb.  97). 

While  a  non-resident  corporation  cannot  plead  the 
statute  of  limitations  as  a  defense  in  an  action,  on  the 
ground  that  it  is  assumed  to  be  perpetually  absent  from 
the  state ;  still  it  has  been  held  that  where  a  corporation 
of  another  state  is  sued  here  under  (uir  statute  for  caus- 
ing the  death  of  a  person,  it  may  plead  the  short  limita- 
tion peculiar  to  that  suit  which  is  contained  in  section 
1902  of  the  code;  as  that  limitation  is  not  a  provision 
of  the  general  statute,  but  is  a  ''dilferent"  limitation 
prescribed  by  law.  (Co.  Civ.  Proc.  §  414;  Londriggan 
v.  N.  Y.  cG  X.  H.  R.  R.  Co.,  12  Abb.  N.  C.  273;  see,  also, 
note).  See,  also,  vol.  I,  p.  103,  ct  seq.  as  to  the  rules 
with  regard  to  the  limitation  of  actions  by  or  against 
foreign  cor[)oratious.  It  is  to  be  noted  that,  since 
volume  I  has  appeared,  a  new  section  (390aj  has  been 
added  to  the  chapter  of  the  code  on  limitations,  which 
is  as  follows:  Where  a  cause  of  action  arises  outside 
of  this  state,  an  action  cannot  be  brought,  in  a  court  of 


ACTIONS  UELATING  TO  COKPOUATIONS.       315 

this  state,  to  euforce  said  cause  of  action,  after  the  ex- 
piration of  tlie  time  limited  by  the  laws  of  the  state  or 
country  where  the  cause  of  action  arose,  except  where 
the  cause  of  action  orii^inally  accrued  in  favor  of  a  resi- 
dent of  this  state.  Nothing  in  this  section  shall  affect 
any  pending  action  or  proceeding.  This  section  was 
added  by  chapter  198  of  the  Laws  of  1902.  For  an 
application  of  this  section,  see  Holmes  v.  Hcngen  (41 
Misc.  521). 

As  was  mentioned  in  subdivision  one  {supra)  the 
question  as  to  whether  or  not  a  cause  of  action  exists 
against  or  in  favor  of  a  foreign  corporation,  is  a  matter 
of  positive  law,  and  not  of  practice,  and  therefore  is  not 
within  the  scope  of  this  chapter. 

A  very  interesting  collection  of  authorities  on  the  sub- 
ject of  corporation  litigation  will  be  found  in  a  note  in 
vol.  9,  Abb.  N.  C.  1G2.  An  equitable  action  may  be 
maintained  by  a  foreign  corporation,  in  the  courts  of 
this  state,  to  restrain  the  violation  of  covenants.  {Dia- 
mond Match  Co.  V.  Rochcr,  lOG  N.  Y.  473). 

Subdivision  3. — Against  Trustees  or  Other  Officers 
OF  A  Corporation. 

An  action  may  be  maintained  against  one  or  more 
trustees,  directors,  managers,  or  other  oflflcers  of  a  cor- 
poration, to  procure  a  judgment  for  the  following  pur- 
poses, or  so  much  thereof  as  the  case  requires : 

1.  Compelling  the  defendants  to  account  for  their 
official  conduct,  in  the  management  and  disposition  of 
the  funds  and  property,  committed  to  their  charge. 

2.  Compelling  them  to  pay  to  the  corporation,  which 
they  represent,  or  to  its  creditors,  any  money,  and  the 
value  of  any  property,  which  they  have  acquired  to  them- 
selves, or  transferred  to  others,  or  lost,  or  wasted,  by  a 
violation  of  their  duties. 

3.  Suspending  a  defendant  from  exercising  his  office, 
Avhere  it  appears  that  he  has  abused  his  trust. 

4.  Removing  a  defendant  from  his  office,  upon  proof 
or  conviction  of  misconduct,  and  directing  a  new  elec- 
tion to  be  held  by  the  body  or  board,  duly  authorized  to 


hold  tlio  saiiu',  iu  order  to  supi)ly  the  vacaiK  y  created 
by  the  removal;  or,  where  there  is  no  such  body  or 
board,  or  where  all  the  iiieiiibers  thereof  are  removed, 
directini;  the  removal  to  be  reported  to  the  governor, 
who  may,  with  the  adviee  and  consent  ol"  the  senate.  Mil 
the  vacancies. 

5.  Settinji'  aside  an  alienation  of  ])i-o|)erty,  made  by 
one  or  more  trnstees,  directors,  manaj^ers,  or  other  otli- 
cers  of  a  corporation,  contrary  to  a  provision  of  law, 
or  for  a  jtnrpose  forei^un  to  the  lawfnl  bnsiness  and  <tb- 
jects  of  the  cori)oration,  where  the  alienee  knew  the  pnr- 
pose  of  the  alienation. 

().  Restraininii'  and  ])reventinii-  snch  an  alienation, 
where  it  is  threatened  or  where  there  is  good  reason  to 
apprehend  that  it  will  be  made.     (Co.  Civ.  Proc.  §  1781). 

An  action  may  be  bron,i>ht,  as  ])i'escribed  in  section 
17S1,  by  the  attoi'ney-.Lieneral  in  behalf  of  the  people  of 
the  state;  or,  except  where  the  action  is  brought  for  the 
pnrpose  specified  in  snbdivision  third  or  fourth  of  that 
section,  by  a  creditor  of  the  coi-poration,  <ir  by  a  trnst(M», 
director,  manager,  or  other  ofticfM*  of  the  corporation, 
luiving  a  general  superintendence  of  its  concerns.  (Co. 
Civ.  Proc.  §  17S2). 

The  two  sections  just  quoted  do  not  divest  or  im])air 
any  visitorial  ])ower  over  a  corporation,  which  is  vested 
by  statute  in  a  corporate  body,  or  a  public  officer.  (Co. 
Civ.  Proc.  §  1783). 

A  trustee,  direct(u%  or  other  oflRct^r  of  a  corporation 
shall  not  l)e  suspended  or  removed  from  office,  by  a  court 
or  judge,  otherwise  than  by  the  final  judgment  of  a 
competent  court,  in  an  action  brought  by  the  attorney- 
general,  as  prescribed  in  section  1781  of  the  code.  (Co. 
Civ.  Proc.  §  1811). 

The  court  can  only  interfere  Avith  a  corporation  or  its 
officers  on  some  of  the  grounds  specified  in  the  statute. 
(Ferris  v.  Sirouf/.  3  Edw.  Ch.  127).  It  has  no  power 
over  corporations,  either  visitorial  or  otherwise,  except- 
ing such  as  is  given  by  statute.  (Brlmouf  v.  Erie  Rail- 
mtif  Co..  52  Parb.  037).  But  by  the  equity  powers  of 
the  supreme  court  it  may  compel  trustees  of  a  corpora- 
tion to  execute  their  trusts,  and  may  remove  them  if 


ACTIONS  UELATINC;  TO  COUPOKATIONS.       317 

necessary,  independent  of  statute.  (Boirdcn  v.  M'Leod, 
1  Edw.  Cli.  588).  By  the  sections  of  the  code  above 
quoted,  a  remedy  is  provided  for  the  unlawful  alienation 
of  property  by  a  corporation  contrary  to  law,  especially 
where  the  one  to  whom  it  is  aliened  knew  that  such 
alienation  was  contrary  to  law;  and  also  for  suspending 
an  officer  of  a  corporation  where  it  appears  that  he  has 
abused  his  trust  or  has  uiismauaged  the  property  com- 
mitted to  his  charge  or  wasted  it,  or  transferred  it  to 
others  in  violations  of  his  duties;  and  for  the  removal 
from  office  of  such  officer  for  misconduct.  Directors 
who  wilfully  abuse  their  trust  are  liable  to  their  cestui 
que  trusts,  and  may  be  required  to  make  good  any  loss, 
sustained  by  them,  independent  of  the  statute;  as  the 
supreme  court  has  equity  powers  sufficient  to  enforce  the 
obligations  of  a  trustee.  (Robinson  v.  l>)niitJi,  3  Paige, 
222).  If  such  trustees,  by  their  negligence,  occasion 
loss,  the}'  will  be  required  to  make  it  good.  (Id.). 
Where  they  act  in  violation  of  law,  as  by  auditing  a  bill 
in  favor  of  on(^  of  their  number,  without  whose  presence 
there  would  not  have  been  a  quorum  in  the  board,  and 
who,  by  reason  of  his  interest,  was  disqualified  from 
acting,  their  action  is  not  only  void,  but  it  is  a  fraud 
upon  the  stockholders;  and  such  stockholders  may  not 
only  proceed  against  such  trustee  in  whose  favor  the 
bill  was  audited,  but  against  the  otliers  taking  part  in 
the  act,  who  are  liable  to  pay  to  the  stockholders  any 
danmges  caused  by  such  act.  (Butts  v.  Wood,  37  N.  Y. 
317).  The  relation  existing  between  the  directors  and 
the  corporation  is  that  of  trustee,  for  all  practical  pur- 
poses.    (Id.;  Bosworth  v.  Allen,  1C8  K.  Y.  157). 

It  has  very  recently  been  held  that  sections  1781  and 
1782  do  not  apply  to  foreign  corporations.  (Miller  v. 
Barlow,  88  App.  Div.  520).  Regardless  of  statute,  how- 
ever, the  court  has  jurisdiction  of  an  action  by  resident 
stockholders  in  equity  against  the  officers  of  a  foreign 
corporation  to  compel  a  restoration  and  accounting. 
(Ernst  v.  The  Rulhrrford  ct-  B.  H.  O.  Co.,  38  App.  Div. 
388;  Halhnhorf/  v.  Greene,  66  App.  Div.  500).  Of 
course,  such  a  ''stockholder's  action''  is  a  very  different 
thing  from  the  action  by  a  "creditor  of  the  corporation, 


318  I'KACTICE. 

or  by  a  tnistt'o,  diiectoi-,  iiiaiia<ivi',  or  other  ottiti'r  of 
the  corporatiou,  having"  a  general  superintendence  of  its 
concerns,"  as  provided  for  by  sections  1781  and  ITSi'. 

In  an  action  by  the  people  under  sections  1781  and 
1782,  the  determination  of  the  question  as  to  whether 
the  public  interests  recjuire  the  bringing  of  the  action 
is  committed  by  the  statute  to  the  absolute  discretion 
of  the  attorney-general,  and  it  may  not  be  nmde  the  sub- 
ject of  inquiry  by  the  court  on  the  trial  of  the  action, 
( People  V.  Ballard,  134  N.  Y.  2G9 ) .  Of  course,  an  action 
under  these  sections  does  not  contemi)late  the  distribu- 
tion of  the  corporate  assets  among  creditors  nor  a  disso- 
lution of  the  corporation.  {Hal pin  V.  Mutual  Breicing 
Co.,  91  Hun,  220;  app.  dismissed,  148  N.  Y.  741). 

As  to  the  manner  of  compelling  a  stockholder  or  offi- 
cer of  a  corporation  to  testify,  see  article  11,  section  3, 
subdivision  5,  infra.  As  to  the  parties  to  such  an  action, 
see  vol.  I,  pp.  147,  152,  et  seq.  As  to  an  injunction  or  a 
receiver  in  such  cases  see  vol.  I,  pp.  549,  582,  727,  et  seq. 

The  actions  mentioned  in  this  subdivision  do  not 
include  actions  brought  against  a  religi(ms  corjx)- 
ration,  or  a  municipal  or  other  political  corpora- 
tion, created  by  the  constitution,  or  by  or  under  the 
laws  of  the  state;  or  to  an}^  corporation  which  the 
regents  of  the  university  have  power  to  dissolve,  except 
upon  the  ap])lication  of  the  reg(mts,  or  of  the  trustees, 
of  such  a  corporation,  and  in  and  of  its  liquidation  under 
such  dissolution.  (To.  (Mv.  Proc.  §  1804).  This  section 
was  amended  in  1903  (chaptei-  290,  L.  1903)  ;  before  such 
amendment  the  section  exempted  a  ''munici])al  or  other 
political  corporation,''  etc.,  from  the  operation  of  the 
ai'ticles  of  the  code  in  (juestion;  the  amendment  struck 
out  the  word  "political,"  leaving  the  phrase  "other  cor- 
poration, etc'-;  this,  of  course,  if  construed  literally, 
would  have  exempted  all  corporations,  but  it  was  held 
that  resort  would  be  had  to  the  ejusdem  generis  doctrine 
of  construction,  and  that  the  words  "  other  corpora- 
tions '■  would  be  deemed  to  take  character  from  the 
word  "municipal.''  (T.  Ell  wood  Lee  Co.  v.  Merchant 
Marine  Hospital  Service,  N.  Y.  Law  J.,  Feb.  25,  1904, 


ACTIONS   RELATING    TO    COIIPOUATIONS.  319 

p.  1801 ) .     By  chapter  501  of  the  laws  of  11)04,  the  word 
"  political  "  was  restored  to  the  section. 

Where  section  1782,  above  cited,  refers  to  an  action 
being  brought  by  a  creditor  of  a  corporation,  it  means  a 
judgment  creditor,  and  not  a  mere  general  creditor. 
(Belknap  v.  North  American  L.  Ins.  Co.,  11  Hun,  282 ; 
Cole  V.  Kuickcrhocker  Life  Ins.  Co.,  23  Hun,  255). 

Sec.    2.   Pleadings  and  proceedings. 

In  an  action  brought  by  or  against  a  corporation,  the 
complaint  must  aver  that  the  plaintiff,  or  the  defendant 
as  the  case  may  be,  is  a  corporation ;  must  state  whether 
it  is  a  domestic  or  foreign  corporation ;  and,  if  the  latter, 
the  state,  country,  or  government,  hj  or  under  whose 
laws  it  was  created.  But  the  plaintiff  need  not  set  forth, 
or  especially  refer  to  any  act  or  proceeding,  by  or  under 
which  the  corporation  was  created.  (Co.  Civ,  Proc. 
§  1775).    See,  also,  vol.  I,  p.  400. 

In  an  action,  brought  by  or  against  a  corporation,  the 
plaintiff  need  not  prove,  upon  the  trial,  the  existence  of 
the  corporation,  unless  the  answer  is  verified,  and  con- 
tains an  affirmative  allegation  that  the  plaintiff,  or  the 
defendant,  as  the  case  may  be,  is  not  a  corporation.  ( Co. 
Civ.  Proc.  §  1776).    Upon  this  subject,  see  vol.  I,  p.  336. 

In  an  action  or  special  proceeding,  brought  by  or 
against  a  corporation,  the  defendant  is  deemed  to  have 
waived  any  mistake  in  the  statement  of  the  corporate 
name,  unless  the  misnomer  is  pleaded  in  the  answer,  or 
other  pleading  in  the  defendant's  behalf.  (Co.  Civ.  Proc. 
§  1777). 

In  an  action  against  a  foreign  or  domestic  corpora- 
tion to  recover  damages  for  the  non-i)ayment  of  a  prom- 
issory note,  or  other  evidence  of  debt,  for  the  absolute 
payment  of  money,  upon  demand,  or  at  a  particular 
time,  an  order,  extending  the  time  to  answer  or  demur, 
shall  not  be  granted,  except  by  the  court  upon  notice  to 
the  plaintiff's  attorney.  In  such  an  action,  unless  the 
defendant  serves,  with  a  copy  of  his  answer  or  demurrer, 
a  copy  of  an  order  of  a  judge,  directing  that  the  issues 
presented  by  the  pleadings  be  tried,  the  plaintiff  may 
take  judgment,  as  in  case  of  default  in  pleading,  at  the 


320  PRACTICE. 

ex})irati()ii  of  twenty  days  after  service  of  a  copy  of  the 
complaint,  either  personally  w  ith  the  suiiiinoiis,  or  upon 
the  defendant's  attorney,  pursuant  t(»  his  demand  there- 
for; or,  if  the  service  of  the  summons  was  otlierwise  than 
personal,  at  the  expiration  of  twenty  days  after  the  ser- 
vice is  complete.  (Co.  Civ.  Proc.  §  17TS).  For  a  dis- 
cussion of  the  provisions  of  this  section  as  to  the  order 
for  the  trial  of  issues,  see  vol,  II,  pp.  707-708. 

Exceptini*'  so  far  as  modified  hy  si)ecial  statutor}'  regu- 
lations, the  pleadings  and  proceedings  in  these  actions 
are  the  same  as  in  other  actions;  and  are  sufficiently 
treated  of  under  their  various  headings  in  vol.  I,  so  as 
not  to  recjuire  any  examination  in  this  chapter,  further 
than  to  show  the  statutory  requirements  which  are  pe- 
culiar to  such  actions. 

As  to  the  service  of  a  summons  on  a  corporation 
whether  foreign  or  domestic,  see  vol.  I,  p.  205,  et  seq. 
Since  volume  1  was  published,  section  432  of  the  code 
has  been  amended  (chap.  311,  Laws  1903)  so  as  to  allow 
service  on  a  foreign  corporation  by  a  delivery  of  a  copy 
of  the  summons  to  the  vice-president,  assistant  treas- 
urer, or  assistant  secretary,  as  well  as  the  officers  speci- 
fied in  section  432,  as  set  forth  on  page  207  of  volume  I. 
In  these  actions  against  the  trustees  or  other  officers  of 
a  corporation,  the  fact  that  a  similar  action  has  been 
brought  by  one  director  to  compel  others  to  account  is 
not  a  bar  to  an  action  by  the  attorney-general.  {Keeler 
V.  Broohli/n  Ele.  R.  li.  Co.,  9  Abb.  N.  C.  166).  Under 
sections  1781  and  1782  the  attorney-general  has  the  right 
to  bring  the  action  to  compel  the  officers  of  corporations 
to  account  for  their  official  misconduct  in  the  manage- 
ment and  disposition  of  the  funds,  and  also  to  procure 
a  judgment  suspending  them  from  office,  where  it  ap- 
pears that  they  have  abused  their  rights;  and  the  action 
need  not  be  brought  on  the  relation  of  any  private  per- 
son. {People  V.  Ballard,  134  N.  Y.  269).  ^Vhere  the 
action  is  brought  by  a  creditor,  the  complaint  should 
state  the  nature  of  his  claim,  how  it  arose,  the  amount 
due,  and  that  he  has  demanded  payment  before  the  com- 
mencement of  the  suit.     {Ramsey  v.  Erie  Railway  Co., 


ACTIOX.S   RELATING    TO   COUl'OUATIONS.  321 

7  Abb.  Tr.  N.  S.  156).  In  such  a  case,  however,  the 
court  will  uot  order  a  suspension  of  the  business  of  the 
corporation,  unless  the  proof  of  the  misconduct  of  the 
trustees  or  other  officers  is  clear  and  positively  sworn  to. 
(Id.).  If  such  an  order  suspending  the  ordinary  busi- 
ness of  the  corporation,  or  of  a  joint  stoclv  association 
consisting  of  several  more  persons,  or  suspending  from 
office,  or  restraining  from  the  performance  of  his  duties, 
a  trustee,  director,  or  other  officer  thereof,  is  granted 
before  the  trial,  it  can  be  made  only  by  the  court  upon 
notice  of  the  application  therefor  to  the  proper  officer 
of  the  corporation  or  association,  or  to  the  trustee, 
director  or  other  officer  sought  to  be  enjoined.  (Co. 
Civ.  Proc.  §  1809 ) .  If  made  otherwise,  it  is  void.  ( Id. ) . 
No  laches  short  of  the  statute  of  limitations  is  a  bar  to 
the  action  by  the  corporation  against  directors  for  dam- 
ages arising  from  violations  of  duty.  {11  ion  Bank  v. 
Canrr,  31  Barb.  230). 

It  is  no  part  of  the  x)urpose  of  this  chapter  to  deal 
with  the  countless  questions  of  substantial  law  that 
arise  in  actions  by  stockholders  against  corporations, 
and  their  directors  or  officers.  This  work  deals  only 
with  the  practice  or  procedure  in  such  actions,  as  well 
as  others  against  corporations.  As  to  parties  to  actions 
by  or  against  corporations,  see  vol.  I,  pp.  147,  152,  ct  scq. 
As  to  limitations  of  actions  by  or  against  corporations, 
see  vol.  I,  p.  98,  et  seq.  As  to  the  verification  of  plead- 
ings by  corporations,  see  vol.  I,  p.  339,  et  seq.  As  to  the 
manner  of  granting  and  serving  an  injunction  order,  or 
as  to  the  appointment  of  a  receiver  in  actions  against  a 
director  or  other  officer  of  a  corporation,  see  article  II, 
section  3,  Infra;  see  also  vol.  I,  pp.  549,  582,  727,  et  seq. 
Where  an  injunction  order  has  been  granted  in  such  an 
action  without  notice,  it  may  be  vacated  without  notice. 
(Co.  Civ.  Proc.  §  02G;  see  vol.  I,  p.  606).  As  to  the 
granting  and  enforcing  of  a  warrant  of  attachment 
against  a  corporation,  see  vol.  I,  pp.  619,  647.  As  to  the 
mode  of  settling  issues  and  of  trial,  see  vol.  II,  p.  263. 
As  to  the  manner  of  proving  the  acts  or  transactions  of 
a  corporation,  see  vol.  II,  p.  102;  and  as  to  the  manner 
21 


322  PUAC'TICE. 

of  coinpelliiio-  (lio  attendance  of  witnesses  and  the  pro- 
(Inctidii  of  l»(Kiks  and  iiapers,  see  vol.  II,  p.  ST,  <i  .s<<j. 

The  sle|>s  necessary  to  l»e  taken  on  an  application  for 
jnd<;nient  will  he  fonnd  in  vol.  II,  ]>]).  717,  727,  ct  scq; 
and  on  appeal,  in  vol,  11,  chapter  XLll. 


ARTICLE  II. 

TO    DISSOLVE    A    CORPORATION    OR    ENFORCE    LIABILITY    OF 

OFFICER. 
SECTIOX. 

1.  When  action  may  be  brought. 

2.  By   whom   brought. 

3.  Proceedings  in  the  action. 

4.  Judgment. 

.5.  Application  of  certain  sections. 

Sec.    1.    AVlien  action  may  be  brought. 

Where  final  jnd«»nient  for  a  snni  of  money  has  been 
rendered  against  a  corporation  created  by  or  under  the 
laws  of  the  state,  and  an  execution  issued  thereupon  to 
the  sheriff  of  the  county,  where  the  corpoi-ation  ti-ans- 
acts  its  geneial  business,  or  where  its  i>rincipal  office  is 
located,  has  been  returned  wholly  or  partly  unsatisfied, 
the  jndgnient  creditor  may  maintain  an  action  to  ])Vo- 
eure  a  judoment  sequestrating-  the  property  of  the  cor- 
poration, and  providing  for  a  distribution  thereof,  as 
prescriljed  in  section  1793  of  the  code.  (Co.  Civ.  Proc. 
§1784). 

In  either  of  the  following  cases,  an  action  to  procure  a 
judgment,  dissolving  a  corporation,  created  by  or  under 
the  laws  of  the  state,  and  forfeiting  its  corporate  rights, 
privileges  and  franchises,  may  be  maintained,  as  pre- 
scribed in  section  17SG : 

1.  Where  the  corporation  has  remained  insolvent  foi- 
at  least  one  year. 

2.  Where  it  has  neglected  or  refused,  foi"  at  least  one 
year,  to  pay  and  discharge  its  notes  or  other  evidences 

of  del)t. 


ACTIONS   RELATING    TU   COKI'OUATIONS.  o23 

3.  Where  it  lias  suspended  its  ordiuiiry  and  lawful 
business  for  at  least  one  year. 

•4.  If  it  has  banking  powers,  or  power  to  make  loans 
on  i)ledges  or  deposits,  or  to  make  insurances,  where  it 
becomes  insolvent  or  unable  to  pay  its  debts,  or  has  vio- 
lated any  provision  of  the  act,  by  or  under  which  it  was 
incorporated,  or  of  any  other  act  binding  upon  it.  (Co. 
Civ.  Proc.  §  1785). 

This  article  has  nothing-  to  do  with  the  voluntary  dis- 
solution of  a  corporation ;  and  the  rules  in  such  cases  are 
provided  by  sections  2419  to  2131  of  the  code. 

As  to  the  leave  to  sue  in  actions  brought  pursuant  to, 
the  sections  of  the  code  above  quoted,  see  vol.  I,  p.  128, 
et  scq. 

As  we  have  seen  in  article  I  of  this  chapter,  the  ordi- 
nary proceedings  in  actions  where  one  or  both  parties 
are  corporations,  are  the  same  as  in  other  actions;  and, 
therefore,  need  not  be  spoken  of  in  this  chapter;  but 
reference  is  made  to  the  preceding  volumes  of  this  work. 

A  corporation  is  not  necessarily  dissolved  by  proceed- 
ings under  section  1781  {Mann  v.  Pentz,  3  N.  Y.  115; 
Auburn  Button  Co.  v.  ^ulrC'Stcr,  (38  Hun,  101),  though 
the  practical  effect  of  the  sequestration  and  the  ceasing 
to  do  business  may  be  the  equivalent  of  a  dissolution, 
so  far  as  a  stockholder's  lialnlity  is  concerned,  for  in- 
stance. {HolIiiH/.shcad  v.  Woodu-ard,  107  N.  Y.  00). 
Also,  to  the  effect  that  a  judgment  of  sequestration  is  a 
practical  dissolution  of  the  corporation,  see  Eddij  v.  Co- 
op. Dress  Assn.  (3  Civ.  Proc.  Kep.  112),  and  Tockcrson 
v.  Chapin  (52  N.  Y.  Super.  Ct.  Kep.  16,  19).  But  a 
judgment  of  sequestration  <loes  not  prevent  an  action 
against  the  company.  (Auhurii  Button  Co.  V.  tiylcestcr, 
supra).  Of  course,  section  1784,  by' its  express  terms, 
applies  only  to  domestic  corporations.  (Drei/fus  v. 
Scale.  37  App.  Div.  351).  An  action  under  section  1785 
neeesKurUji  icsults,  if  successful,  in  the  dissolution  of 
the  corporation. 

The  right  of  the  court  to  dissolve  a  corporation  is 
purely  statutory ;  it  cannot,  by  its  inherent  powers  as  a 
court  of  equity,  dissolve  a  corporation.  (Bliren  v.  Peru 
Steel  <(•  /.  Co.]  9  Abb.  N.  C.  205) .    Nor  can  the  court,  ex- 


324  I'KACTUK. 

ccpt  hy  stalutoi'v  ])(>\vi'i's,  take  away  any  of  tlic  corijor- 
atc  iMLiiits  or  rrancliiscs  of  a  c()i'[)oralioii.  [\'(ii)l(iii(k 
V.  Ihrc.  hi.s.  Co.,  1  E(l\\.  (Ml.  84).  Whetlici'  or  not  a 
corporation  lias  remained  insolvent  for  one  year  or  has 
neiilecled  to  pay  its  debts  or  notes  for  a  like  jx'riod,  oi' 
has  snspended  its  ordinary  business  foi-  I  he  same  time; 
or  whether  or  n(;t  a  bankinjj,  corporation  has  be- 
come insolvent  or  unable  to  i)ay  its  debts  or  has 
violated  any  of  the  pro\isi<»ns  of  the  act  undei- 
which  it  was  incorixtrated ;  are  all  nuitters  of  fact 
and  not  of  practice,  and  dei)end  upon  the  circum- 
stances of  each  particular  case,  and  are  of  the  very  gist 
of  the  rijiht  of  action;  and  have  therefore  no  occasion 
to  be  discussed  in  a  work  on  }»ractice.  \\'here  any  of  the 
facts  exist  which  are  sjiecitied  in  the  section  above 
quoted,  and  such  facts  ai'c  alleged  as  the  basis  of  an 
action,  the  statute  iiives  the  i-iglit  to  proceed  to  <lissolve 
the  corporation,  if  the  evidence  shows  the  facts  to  be  as 
claimed.  The  pendency  of  a  proceedinu'  for  voluntary 
dissolution  of  a  corporation  under  section  2419  and  the 
folloAving-  sections  of  the  code  is  not  a  bar  to  an  action 
by  the  attorney-general  under  section  1785  (People  v. 
Seneca  Lake  (J.  d-  IV.  Co.^  52  llun,  174)  ;  and  it  would 
seem  that,  under  the  later  decisions  on  the  subject,  the 
attorney-generars  action  takes  priority  over  all  earlier 
instituted  voluntary  dissolution  jiroceedings.  {Matter 
of  Mun-ay  Hill  Bank,  153  X.  Y.  199).  But  a  judgment 
creditor's  action  for  se(|uestration  and  a  voluntary  dis- 
solution proceeding  are  of  equal  dignity  and  may  be 
prosecuted  together  (Matter  of  Uoaf/land,  cGr-.,  Co.,  36 
^lisc.  28),  though  different  receivers  will  not  be  ap- 
pointed in  each.     (Id.). 

Sec.    2.    By  ivhoin  brought. 

When  the  action  is  brought  under  section  1784  of  the 
code,  the  judgment  creditor  is  the  proper  party  plain- 
tiff. This  proceeding  takes  the  place  of  the  ordinary 
judgment  creditor's  action  in  other  cases;  as  a  judg- 
ment creditor  cannot  bring  the  ordinary  judgment 
creditor's  action  where  the  judgment  debtor  is  a  corpo- 
ration created  by  or  under  the  laws  of  this  state.      (Co. 


ACTIONS  RELATING  TO  COUPOUATIONS.       325 

Civ.  Prof.  §  1871)).  \U\t  tlic  action  by  a  judj^uionl  cred- 
itor imder  this  section  to  s(M[nester  tlie  jn-operty  of  the 
corporation,  does  not  snpersede  tlie  right  of  the  attor- 
ney-general to  institute  proceedings  to  dissolve  snch 
corporation,  nor  the  right  of  a  general  creditor  to  in- 
stitute proceedings  to  restrain  the  improper  exercise  of 
its  corporate  poAvers.  (Dainhniaii  v.  Empire  Mill,  12 
Barb.  341). 

Where  the  action  is  brisught  under  section  1785  of 
the  code,  it  may  be  maintained  by  the  attorney-general, 
in  the  name  and  in  behalf  of  the  people,  and  whenever 
a  creditor  or  stockholder  of  any  corporation  submits  to 
the  attorney-general  a  written  statement  of  facts,  veri- 
fied by  oath,  showing  grounds  for  an  acti<m  under  the 
provisions  of  said  section,  and  the  attorney-general 
omits,  for  sixty  days  after  the  submission,  to  commence 
an  action  specified  in  said  section,  then,  and  not  other- 
wise, such  creditor  or  stockholder  may  apply  to  the 
proper  court  for  leave  to  commence  such  an  action,  and 
on  obtaining  leave  may  maintain  the  same  accordingly. 
(Co.  Civ.  Proc.  §  1786). 

An  action  under  section  1785  must  be  brought  either 
by  the  attorney-general  in  the  name  of  the  people,  or  by 
a  creditor;  it  should  not  b(^  brought  in  the  name  of  the 
people  on  the  relation  of  a  party.  {People  cjc  rcl 
Hearst  v.  Rautapo  Wafer  Co.,  51  App.  Div.  145,  senihle). 
Of  course,  a  stockholder  cannot  bring  the  action.  {AVil- 
mersdoerffer-\.  hal-e  MaJtopac  Imp.  Co.,  18  Hun,  387). 

Where  the  attorney-general  has  good  reason  to  be- 
lieve, that  an  action  can  be  maintained  in  behalf  of  the 
people  of  the  state,  against  an  officer  of,  or  to  dissolve 
or  annul  a  cor])oration,  except  an  action  specified  in 
section  1797  of  the  cod(%  he  must  bring  an  action  ac- 
cordingly, or  apply  to  a  competent  court  for  leave  to 
bring  an  action,  as  the  case  requires;  if,  in  his  opinion, 
the  public  interests  require  that  an  action  should  be 
brought.  In  a  case  where  the  action  can  be  brought 
only  l)y  the  attorney-gener-al  in  behalf  of  the  people, 
if  a  creditor,  stockholder,  director,  or  trustee  of  the 
corporation,  applies  to  the  attorney-general  for  that 
purpose,  and  furnishes  the  security  required  by  law,  the 


32(>  rKAcnci:. 

jittoi'iicy-iicncral  iinist  hi-iiiu  llic  action,  or  api)ly  for 
leave  to  hriiiii  it,  if  lie  has  <i,(»o<i  reason  to  believe  llial  il 
ean  be  maintained.  Where  snch  an  application  is  made, 
section  1!)S(»  of  the  code  ai)plies  thereto,  and  to  the 
action  brouiiht  in  jMirsnanee  thereof.  (Co.  Civ.  IM'oc. 
§  1808). 

Where  the  action  is  broni>ht  npon  the  relation  of  a 
creditor  or  other  party,  he  shonld  be  joined  with  the 
attorney-general  as  relator.  (Co.  Civ.  Proc.  §  198G). 
As  to  who  are  proper  parties  plaintitf  in  actions  to  dis- 
solve or  annnl  a  corporation,  or  against  the  officers  of  a 
corporation,  see  vol.  I,  pp.  147,  152,  ct  seq. 

A^'here  the  action  is  brought  by  a  creditor  of  a  corpo- 
ration, and  the  stockholders,  directors,  trustees,  or  other 
officers,  or  any  of  them,  are  made  liable  by  law,  in  any 
event  or  contingency,  for  the  payment  of  his  debt,  the 
persons,  so  inade  liable,  may  be  made  parties  defendant, 
by  the  original  or  by  a  supplemental  complaint;  and 
their  liability  may  be  declared  and  enforced  by  the  judg- 
ment in  the  action.      (Co.  Civ.  Proc.  §  1790). 

This  section  and  section  1795  (treated  of  in  section  4, 
infra )  only  apply  when  the  action  is  brought  by  a  cred- 
itor— not  where  it  is  brought  by  the  attorney-general. 
(People  v.  Coniniereial  Jiank,  37  ]\Jisc.  16;  alfd.  on  op. 
below,  72  App.  Div.  633). 

AVhere  the  stockholders,  directors,  trustees,  or  other 
officers  of  a  corporation,  who  are  made  liable,  in  any 
event  or  contingency,  for  the  payment  of  a  debt,  are  not 
made  parties  defendant,  as  prescribed  in  section  1790, 
the  ]»laiiititT  in  the  action  may  maintain  a  se])arate 
action  against  them,  to  procure  a  judgment,  declaring, 
apportioning  and  enfcn-cirig  their  liability.  (Co.  Civ. 
Proc.  §  1791). 

A>'hen  a  creditor  is  seeking  to  enforce  a  stockholder's 
liability,  he  has  an  election  of  remedies;  he  may  bring 
his  action  at  law  against  any  or  all  of  the  stockhohhn'S 
and  enforce  his  liability  against  them,  without  regard 
to  the  other  creditors  of  the  corpoi'ation,  or  he  may 
bring  an  action  in  cfiuity  which  inures  to  the  benefit  of 
all  creditors  similarily  situated.  {Matliez  v.  Neidig, 
72  X.  Y.  100).      In  a  pi'opei-  e(|uity  suit,  of  the  latter 


ACTIONS    UELATING    TO    COKI'UUATIOXS.  327 

kind,  actions  at  law  of  the  first-mentioned  elass  will  be 
enjoined  nntil  a  judj»nient  for  an  account ing  and  dis- 
tribution.     {Pfohl  V.  t^impson,  74  N.  Y.  137). 

As  to  the  parties  defendant  in  actions  by  or  against 
corporations,  stockholders  or  directors,  see  vol.  I,  p.  147, 
et  seq. 

Sec.    3.    Proceedings  in  the  action. 

The  pleadings  and  proceedings  in  the  action  are  the 
same  as  in  other  actions,  excepting  so  far  as  modified  by 
special  statutory  regulations.  There  are  several  pro- 
visions in  the  nature  of  provisional  remedies  which  are  . 
specially  applicable  to  actions  by  or  against  corpora- 
tions. Those  provisions  relating  to  bringing  the  action, 
the  service  of  summons,  appearance,  etc.,  are  treated  of 
in  the  preceding  volumes. 

A  reference  shall  not  be  made,  of  course,  upcm  the 
consent  of  parties,  in  an  action  against  a  corporation, 
to  obtain  a  dissolution  thereof,  for  the  appointment  of 
a  receiver  of  its  propert} ,  or  the  distribution  of  its  prop- 
ert}^,  unless  it  is  brought  by  the  attorney-general  (Co, 
Civ.  Proc.  §  1012)  ;  but  in  case  the  parties  consent  to  a 
reference,  the  court  in  its  discretion  may  grant  a  refer- 
ence; but  in  such  case  the  court  must  designate  the 
referee.      ( Id. ) . 

Subdivision  1. — Temporary  Injunction. 

In  an  action,  brought  as  prescribed  in  article  3  of 
title  2  of  chapter  XV  of  the  code  (that  is,  to  procure  the 
se(]uestration  and  distribution  of  the  i)roperty  of  a  cor- 
poration., or  the  dissolution  of  the  corporation),  the 
court  nmy,  upon  proof  of  the  facts  authorizing  the 
action  to  be  maintained,  grant  an  injunction  order, 
restraining  the  corporation,  and  its  trustees,  directors, 
nmnagers  and  other  officers,  from  collecting  or  receiving 
any  debt  or  demand,  and  from  paying  out,  or  in  any 
Avay  transferring  or  delivering,  to  an}^  pei'son,  any 
money,  property,  or  effects  of  the  corporation,  during 
the  pendency  of  the  action;  except  by  express  permis- 
sion of  the  court,      ^^'here  the  action  is  brought  to  pro- 


32S  I'KArTR'E. 

cure  the  <liss(»lutic)ii  of  llio  cdi-ixn-Jitioii,  the  injiinction 
may  also  restrain  the  (•oi'i)oralioii,  and  its  trustees, 
directors,  managers  and  other  officers,  from  exercising- 
any  of  its  corporate  rights,  privih'jics,  or  fraiwliiscs,  dnr- 
inii'  the  i)eudency  of  the  action;  except  hy  express  per- 
mission of  the  court.  The  jn'ovisioiis  of  title  2  of  <'hap- 
tei-  \\l  of  the  code  relatiui;-  to  the  liraiit  in^,  vacating  or 
modifyinji-  of  an  injunct  ion  order,  ai)ply  to  an  injunction 
order,  granted  as  prescribed  in  this  section;  except  that 
it  can  be  granted  only  bv  the  court.  (Co.  Civ.  Proc. 
§  1T87). 

If  a  stockholder  charges  fraud  on  the  part  of  the 
directors  of  a  corporation,  the  court  has  power,  inde- 
pendently of  statute,  to  enjoin  them  from  doing  certain 
peculiar  acts;  but  not  from  doing  the  general  business 
contemplated  by  its  charter.  (Hoire  v.  Deuel ,  41^)  Karb. 
504).  An  injunction  will  not  be  granted  to  restrain  an 
officer  from  performing  the  general  and  ordinary  duties 
of  his  office  (  People  v.  All).  cC-  ^'/^sY/.  li.  R.  Co.,  7  Abb.  Pr. 
N.  S.  205;  modified  on  other  grounds,  5  Lans.  25;  57 
N.  Y.  IGl)  ;  but  he  may  be  restrained  from  doing  any 
particular  wrong  which  affects  the  private  rights  of  any 
other  person  ( Id. )  ;  or  from  doing  fraudulent  acts. 
{Fisk  v.  Chicago,  etc.,  R.  R.  Co.,  53  Barb.  513).  In  an 
action,  brought  as  prescribed  in  articles  2,  3,  or  4  of 
title  2  of  chapter  XV  of  the  code,  the  court  may,  in  its 
discretion,  on  the  application  of  either  party,  at  any 
stage  of  the  action,  before  or  after  final  judgment,  and 
with  or  without  security,  grant  an  injunction  order, 
restraining  the  creditors  of  the  corporation  from  bring- 
ing actions  against  the  defendants,  oi-  any  of  them,  for 
the  recovery  of  a  sum  of  money,  or  from  taking  any 
further  proceedings  in  such  actions,  theretofore  com- 
menced. Such  an  injuiiclion  has  the  same  effect,  and, 
except  as  otherwise  expiessly  prescribed  in  this  section, 
is  subject  to  the  same  provisions  of  law,  as  if  each  cred- 
itor, U])on  whom  it  is  served,  was  named  therein,  and 
was  a  party  to  the  action  in  which  it  is  granted.  (Co. 
Civ.  Proc/§  1806). 

"Where  the  action  is  to  dissolve  a  corporation,  actions 
by  creditors  of  the  corporation  will  be  enjoined,  to  pre- 


ACTIONS  RELATING  TO  COKPOUATIOXS.       329 

vent  lianiperiDij;-  the  proceedings  and  increasing  the  costs 
and  expenses.  The  creditors  should  seek  tlieir  remedy 
in  the  proceeding  which  is  pending.  (Aftij-Genl.  v. 
Xorth  Auiericau  L.  lux.  Co.,  6  Abb.  N.  C.  293).  But  an 
injunction  will  not  be  granted  to  enjoin  creditors  from 
bringing  suit,  where  the  action  to  dissolve  is  commenced 
by  the  officers  of  the  corporation  itself.  {Kingsleij  v. 
First  Xatl  Bank  of  Bath,  31  Uuu,  329).  As  to  the 
manner  of  intervening  by  creditors  in  order  to  protect 
their  interests,  see  note  to  G  Abb.  N.  C.  304.  The  court 
may  permit  a  creditor,  who  has  proceeded  to  judgment, 
to  enter  his  judgment  to  stand  as  security.  {Gahcei/  v. 
U.  S.  mcaiii  Sugar  R.  Co.,  13  Abb.  Pr.  211;  afed.,  36 
Barb.  256).  Where  under  the  charter  of  a  corporation, 
each  stockholder  is  liable  to  every  creditor  whose  execu- 
tion is  unsatisfied,  for  the  whole  debt,  the  court  cannot 
on  the  application  of  one  creditor  restrain  the  others 
from  proceeding  against  the  corporation  or  stockholder. 
{Judson  v.  Rossie  Galena  Co.,  9  Paige,  598).  As  to  who 
are  the  stockholders,  and  their  liability  in  case  of  a 
foreign  corporation,  reference  must  be  made  to  the 
statutes  of  the  state  or  country  Avhere  such  corporation 
is  created.  {Molson\s  Bank  v.  Boardnian,  47  Hun, 
135).  Where  an  action  to  dissolve  or  annul  a  corpora- 
tion or  against  an  officer,  is  brought,  any  creditor  may 
be  enjoined  by  a  general  injunction,  whether  he  is  a 
party  to  the  action  or  not.  (Co.  Civ.  Proc.  §  1806; 
Smith  V.  Danz'u/,  3  Civ.  Proc.  Rep.  127).  But  it  is  to 
be  noted  that  it  is  only  creditors  of  the  corporation  that 
can  be  enjoined,  so  where  a  mortgagee  was  foreclosing 
his  mortgage  on  lands  owned  by  the  corporation,  which 
had  neither  given  nor  assumed  the  mortgage,  it  was  held 
that  the  foreclosure  suit  could  not  be  enjoined.  (David- 
son V.  John  Good  Cordage  Co.,  63  App.  Div.  366). 

An  injunction  order,  suspending  the  general  and  ordi- 
nary business  of  a  corporation,  or  of  a  joint-stock 
association,  consisting  of  seven  or  more  persons,  or  sus- 
pending from  office,  or  restraining  from  the  perform- 
ance of  his  duties,  a  trustee,  director,  or  other  officer 
thereof,  can  be  granted  only  by  the  court,  upon  notice 
of  the  application  therefor,  to  the  proper  officer  of  the 


330  rijAt'TicE. 

corixniitidii  or  associaliou,  or  to  the  trustee,  director, 
or  other  ohkcr  enjoined.  If  sueh  an  injunction  order 
is  nunh',  otherwise  than  as  prescribed  in  this  section,  it 
is  void.      (Co.  Civ.  Troc.  §  1801)). 

It  is  not  necessary  in  this  place  to  go  fully  into  the 
subject  of  iujuuctions,  as  that  subject  has  been  th(»r- 
oughly  treated  in  vol.  I,  {>[}.  541),  582,  581),  cl  .siq. 

Subdivision  '2. — IIeceiver. 

In  an  action,  brou<;ht  as  prescribed  in  article  3  of 
title  2  of  chapter  X\'  of  the  code,  the  court  uuiy  also, 
at  any  staj^c  thereof,  appoint  one  or  nu>re  receivers  of 
the  property  of  the  corporation.  A  receiver,  so  ap- 
pointed, before  final  judj>inent  is  a  temporary  receiver, 
until  final  judi;inent  is  entered.  A  temporary  receiver 
has  power  to  collect  and  receive  the  debts,  demands,  and 
other  property  of  the  corporation;  to  i)reserve  the  i)rop- 
erty,  and  the  proceeds  of  the  debts  and  demands  col- 
lected; to  sell  or  otherwise  dispose  of  the  property  as 
directed  Ity  the  court;  to  collect,  receive  and  preserve  the 
proceeds  thereof;  and  to  nmintain  any  action  or  special 
proceeding,  for  either  of  those  purposes.  He  must 
qualify  as  prescribed  l>y  law  for  the  (|ualiflcation  of  a 
permanent  receiver.  Unless  additional  ])OAvers  are 
specially  conferred  upon  him,  as  prescribed  in  section 
1789  of  the  code,  a  temjiorary  receiver  has  only  the 
powers  specified  in  this  section,  and  those  which  are 
incidental  to  the  exercise  thereof.  A  receiver  appointed 
by  or  pursuant  to  a  final  judgment  in  the  action,  or  a 
temporary  receiver,  who  is  continued  by  the  final  judg- 
ment, is  a  permanent  receiver  and  has  all  the  powers 
and  authority  conferred,  and  is  subject  to  all  the  duties 
and  liabilities  imposed  upon  a  receiver  appointed  u])on 
the  voluntary  dissolution  of  a  corporation.  (Co.  Civ. 
Proc.  §1788'). 

A  temporary  receiver,  appointed  as  prescribed  in  sec- 
tion 1788,  is,  in  all  respects,  subject  to  the  control  of 
the  court.  In  addition  to  the  powers  conferred  ui)on 
him,  by  the  provisions  of  section  1788,  the  court  may, 
by  the  order  or  interlocutory  judgment  appointing  him, 


ACTIONS    UKLATINC;    TO    COUroUATIOXS.  331 

or  by  an  order  sii])so(|npntly  made  in  the  action,  or  b}' 
the  final  judgment,  confer  upon  him  the  powers  and 
authority,  and  subject  him  to  the  duties  and  liabilities, 
of  a  permanent  receiver,  or  so  much  thereof  as  it  thinks 
proper;  except  that  he  shall  not  make  any  distribution 
among  the  creditors  or  stockholders,  before  final  judg- 
ment, unless  he  is  specially  directed  so  to  do  by  the 
court.      (Co.  Civ.  Proc.  §  ITS!)). 

A  receiver  of  the  property  of  a  corporation  can  be  ap- 
pointed onl}'  by  the  court,  and  in  one  of  the  following 
cases : 

1.  An  action,  brought  as  prescribed  in  articles  2,  3  or 
4  of  title  2  of  chai)ter  XV  of  the  code. 

2.  An  action  brought  for  the  foreclosure  of  a  mort- 
gage upon  the  proi)erty,  of  which  the  receiver  is  ap- 
pointed, where  the  mortgage  debt,  or  the  interest  there- 
upon, has  remained  unpaid,  at  least  thirty  days  after  it 
was  payable,  and  after  payment  thereof  was  duly  de- 
manded of  the  proper  officer  of  the  corporation;  and 
where  either  the  income  of  the  property  is  specifically 
mortgaged,  or  the  property  itself  is  probably  insufficient 
to  pay  the  mortgage  debt. 

3.  An  action  brought  by  the  attorney-general,  or  by  a 
stockholder,  to  preserve  the  assets  of  the  corf)oration, 
having  no  officer  empoAvered  to  hold  the  same. 

4.  A  special  proceeding  for  the  voluntary  dissolution 
of  a  corporation. 

5.  Upon  the  application  of  the  regents  of  the  univer- 
sity, in  aid  of  the  liciuidation  of  a  corporation  whose 
dissolution  they  contemplate  or  have  decreed;  or  upon 
the  application  of  the  trustees  of  such  a  corporation 
with  notice  to  the  regents. 

Where  the  receiver  is  appointed  in  an  action,  other- 
wise than  by  or  pursuant  to  a  final  judgment,  notice  of 
the  ap]^lication  for  his  appointment,  must  be  given  to 
the  proper  officer  of  the  corporation.  (Co.  Civ.  Proc. 
§  1810).  In  the  various  general  laws  governing  the 
different  kinds  of  corporations,  as  well  as  in  isolated 
session  laws,  provisions  for  the  appointment  and  con- 
trol of  receivers  of  corporations  are  to  be  found,  such 
as  section  33  of  the  Banking  Law  as  to  banks,  sections 


332  I'HAi'TU'i:. 

40-41,  43,  Td-Sl,  iMlT-iMIS  jiiid  '2X\  of  (he  Insiinnicc  I.aw 
as  to  iiisiiraiKc  coiuitanics,  cliaiJlci-  (»(►  of  Hie  laws  of 
11)02  as  to  ihoik'vimI  coiixiial  ioiis,  etc.;  such  provisiitiis 
should  Ix'  caicliillv  invest  iiialcd  in  taking-  acl  ion  h»ok- 
inu  to  a  recT'lvt'i'ship  of  any  such  «-ori)orations. 

All  motions  for  I  he  sciiucslral  ion  <d"  \\\v  in-opci'ty  of 
eoi'i>(!rations,  oi-  few  Ihc  apixdntincnt  of  receivers 
thereof,  must  be  made  in  the  judicial  district  iu  which 
the  principal  place  of  business  of  said  corporations  re- 
s])ectiveh-,  is  situated,  exce]>t  that  in  actions  brouulit 
by  the  attoi'uey-<;(*neral  in  behalf  of  the  people  of  this 
state,  when  it  shall  be  made  to  a])pear,  that  such  seijues- 
tratiou  is  a  necessary  incident  to  the  action,  and  that  no 
receiver  has  already  been  appointed,  a  motion  for  the 
appointment  of  one  may  be  made  in  any  county  within 
the  judicial  district  in  which  such  action  is  triable.  No 
motion  can  be  made,  or,  other  pi-oceeding  had  for  the 
removal  of  a  receiver,  elsewhere  than  in  the  judicial 
district  in  which  the  oi-der  for  his  appointment  was 
made.  And  where  a  receiver  has  been  appointed,  his 
appointment  shall  be  extended  to  any  subseciuent  suit 
or  proceedinj.*  relating  to  the  same  estate  or  property 
in  which  a  receiver  is  necessary.      (Genl.  Rule,  80). 

The  subject  of  receivers  of  corporations  has  been  fully 
treated  iu  vol.  I,  ])p.  727,  738,  rt  scq.  As  to  the  applica- 
tion for  the  appointment  of  a  receiver,  see  vol.  I,  p.  734. 
Under  subdivision  3  of  section  1810,  a  receiver  should 
not  be  appointed  Avhere  all  the  ofHcers  of  a  corporation 
resign  for  the  purpose  of  having  a  receiver  appointed. 
(Zeltner  v.  ZcJtner  Brcicinf/  Co.,  174  N.  Y.  247).  For 
an  instance  of  the  api)lication  of  this  subdivision  in  the 
appointment  of  a  receiver  of  the  assets  in  this  state  of 
a  foreign  corporation,  see  MacXabh  v.  Porter  Air- 
Lif/hfrr  Co.  (44  Ap]).  Div.  102).  The  appointment  of  a 
receiver  and  the  se(|uestration  of  its  property  does  not 
take  away  its  right  to  defend  an  action  or  to  api)eal 
from  a  judgment  therein.  {J'arr//  v.  American  Opera 
Co.,  9  X.  Y.  St.  rjep.  530).  A  ])roceeding  by  a  creditor 
at  large,  does  not  give  the  court  the  authority  to  appoint 
a  receiver  of  a  corporation  whether  domestic  or  foreign 
(Lehigh  Coal  Co.  v.  Central  A*.  R.  Co.  of  N.  J.,  43  TTun, 


ACTIONS  RELATING  TO  COUPOUATIONS.       333 

54G)  ;  where,  however,  the  action  was  bi-ought  by  a 
stockholder,  the  court  has  the  power  to  appoint  a  re- 
ceiver. (M'oerishoffcr  v.  North  Rircr  Con.  Co.,  99 
N,  Y.  398).  Where  a  corporation  is  dissolved,  an  action 
pending  b}^  or  against  it  must  be  revived  in  the  name 
of  the  receiver;  and  he  is  the  custodian  of  the  fund,  and 
out  of  the  fund  must  pay  anv  costs  obtained  against  liini 
in  defending  the  action  for  the  benetit  of  the  fund. 
{Locke  V.  Covert,  42  Hun,  484).  A  receiver  under  sec- 
tion 1784,  may  maintain  an  action  to  determine  the 
validity'  of  bonds  claimed  to  be  secured  by  mortgage  on 
the  property  of  the  corporation  and  to  ascertain  how 
far  the}'  are  valid  as  a  lien  thereon.  {HiihhcU  v.  Syra- 
cuse Iron  ^yks.,  42  Hun,  182). 

Upon  the  appointment  of  a  receiver  of  a  partnership 
or  of  a  corporation  organized  under  the  laws  of  this 
state  and  doing  business  therein,  other  than  a  mone3'ed 
corporation,  the  wages  of  the  employes  of  such  partner- 
ship or  corporation  shall  be  preferred  to  every  other 
debt  or  claim.  (The  Labor  Law,  §  8).  Under  the  con- 
struction of  this  statute  as  it  now  stands,  the  preference 
is  limited  to  employes  wcu'king  for  icof/es  (as  distin- 
guished from  a  sahiri/},  and  so  to  mechanics,  operatives 
or  laborers,  who  perform  manual  labor,  or  other  labor 
of  a  menial  or  mechanical  kind;  it  does  not  include  the 
clerical  force  engaged  in  transacting  the  business,  such 
as  bookkeepers,  superintendents,  foremen  or  officers  of 
the  corporation  who  are  compensated  at  a  tixed  yearly 
salary.  {Matter  of  Htrjjker,  158  N.  Y.  526;  Dohje  v. 
Dohje,  70  App.  Div.  517;  Cochran  v.  A.  B.  Baker  Co., 
30  Misc.  48).  Section  29  of  chapter  46(1  of  the  laws  of 
1877,  as  amended  by  chapter  ()24  of  the  laws  of  1897,  pro- 
vides that  in  the  distribution  of  assets  under  assign- 
ments for  the  benefit  of  creditors  the  wages  or  salaries 
owing  to  the  emplo^^ees  of  the  assignor  or  assignors  at 
the  time  of  the  execution  of  the  assignment  for  services 
rendered  within  one  year  prior  to  the  execution  of  such 
assignment,  shall  be  preferred,  de.  It  has  recently 
been  held  that  the  words  "  or  salaries ''  make  this  sec- 
tion broader  than  scM-tion  8  of  the  T^abor  Law.  {Hoplxins 
V.  CromweU,  89  App.  Div.  481). 


334:  i'UA(  rui:. 

W'Irtc,  liowx'Vt'r,  siicli  hiborci-  or  (([teralivc  assigns 
his  claim  for  his  wajivs  to  a  iliiid  pcisoii,  such  pcrsou 
is  not  eiitith'd  to  such  pi-cfci-cncc,  as  (he  ri^ht  coiitcnx'd 
hy  this  statute  is  not  assij^nabh'.  [Pcoph'  v.  Rcmiitij- 
t<m  tO  *So».s.  45  Hun,  329;  affd.  on  op.  beh)w,  100  N.  Y. 
631).  Wlu'i-o  a  iHM'oiver  of  any  coi'i)oi'ation,  exceptinj;- 
insurance  companies,  has  been  appointed  on  applica- 
tion by  the  attorney-general,  all  its  property  shall  be 
ti-ansferred  to  and  vest  in  such  receiver,  provided  that 
the  transfer  shall  only  be  made  by  order  of  the  supreme 
court  on  notice.      (Laws  1884,  chap.  285). 

Sur.Di VISION  3. — Accounting. 

Where  the  action  is  brought  by  a  creditor  of  the  cor- 
poration under  sections  1700  or  1701  of  the  code,  the 
court  must,  when  it  is  necessary,  cause  an  account  to  be 
taken  of  the  property  and  of  the  debts  of  the  corpora- 
tion, and  thereupon  the  defendants'  liability  must  be 
apportioned  accordingly;  but,  if  it  afiirmatively  ap- 
pears, that  the  corporation  is  insolvent,  and  has  no 
property  to  satisfy  its  creditors,  the  court  may,  without 
taking  such  an  account,  ascertain  and  determine  the 
amount  of  each  defendant's  liability,  and  enforce  the 
same  accordingly.      (Co.  Civ.  Proc.  §  1702). 

When  such  an  accounting  will  be  ordered,  is  in  the 
discretion  of  the  court;  and  the  manner  of  taking  it  is 
also  directed  by  the  order. 

Subdivision  4. — Advertising  for  Claims. 

In  an  action,  brought  as  prescribed  in  articles  2,  3  or 
4  of  title  2  of  chapter  X\'  of  the  co<k',  the  court  may,  at 
any  stage  of  the  action,  before  or  after  final  judgment, 
make  an  order,  re(]uiriug  all  tlie  creditors  of  the  corpo- 
ration to  exhibit  and  prove  their  claims,  and  thereby 
make  themselves  parties  to  the  action,  in  such  a  man- 
ner, and  witliin  such  a  reasonal)h^  time,  not  less  than 
six  months  from  the  first  i)ublication  of  notice  of  the 
order,  as  the  court  directs;  and  that  the  creditors,  who 
make  default  in  so  doing,  shall  be  precluded  from  all 


ACTIONS  RELATING  TO  CORPORATIONS.       335 

benefit  of  the  jiidi^iueut,  and  from  any  distribution 
which  may  be  made  tliereunder  except  as  hereinafter 
provided.  Notice  of  the  order  must  be  given,  by  publi- 
cation, in  such  newspapers  and  for  such  a  length  of  time 
as  the  court  direct>s.  Notwithstanding  such  order,  any 
such  creditor  who  shall  exhibit  and  prove  his  claim  in 
the  manner  directed  thereby,  with  proof,  by  affidavit  or 
otherwise,  that  he  has  had  no  notice  or  knowledge 
thereof  in  time  to  comply  therewith,  any  time  before  an 
order  is  made,  directing  a  final  distribution  of  the  assets 
of  such  a  corporation,  shall  be  entitled  to  have  his  claim 
received,  and  shall  have  the  same  rights  and  benefits 
thereon,  so  far  as  the  assets  of  such  corporation  then 
remaining  undistributed  may  render  j)ossible,  as  if  his 
claim  had  been  exhibited  and  proved  within  the  time 
limited  by  such  order.      (Co.  Civ.  Proc.  §  1807). 

The  amendment  of  1886  enlarged  the  former  rule  by 
the  addition  of  the  provision  quoted  above  which  per- 
mits a  creditor,  before  judgment  although  after  the  time 
fixed  in  the  order,  to  prove  his  claim  with  like  effect  as 
though  proved  within  the  time  fixed  in  the  order.  The 
section  requires  the  proof  of  the  claims  to  be  made 
before  a  referee.  {People  v.  Reiu'uu/toii  cG  >S'o»s,  15 
Hun,  329;  affd.  on  op.  below,  109  N.  V.  C31).  Form- 
erly the  rule  was  that  claims  not  presented  within  the 
time  fixed  in  the  order,  were  wholly  barred  out  from 
sharing  in  the  avails  of  the  corporation.  {Matter  of 
Harmon j)  Fire  Iii.^.  Co.,  15  N.  Y.  310).  But  tlu'  amend- 
ment of  1886  overrules  that  proposition.  The  referee 
appointed  to  hear  the  proof  upon  claims,  should  aljow 
every  claim  that  he  is  satisfied  could  have  been  estab- 
lished, had  an  action  been  brought  upon  it.  {Attij-Oeiil. 
-v\  L.  cC  F.  Ins.  Co.,  4  Paige,  224) .  But  the  referee  under 
this  proceeding  does  not  have  the  power  to  hear  and 
determine  and  decide  questions  between  parties;  but 
only  to  report  the  proof  upon  the  claims  presented ;  and 
it  is  for  the  court  to  pass  upon  such  claims;  and  exc(q> 
tions  to  the  report  of  such  referee  need  not  be  filed. 
{Atty-Genl.  V.  Continental,  etc.,  Co.,  64  How.  Pr.  93). 


330  I'UACTICE. 

Sur.DivisioN    5. — roMTKLLixc;    Stoc'KIIoldkk,    etc.,    to 

Testify. 

In  an  action,  bronjilit  as  i)i-('S(i-ilir(l  in  articles  2,  3  or 
4  of  title  L*  of  cliai)tei'  XV  of  the  code,  a  stockholder, 
officer,  alienee,  or  aj^ent  of  a  corporation,  is  not  excused 
from  answering'  a  question,  relating  to  tlie  nianagenieut 
of  the  cori)oration,  or  the  transfer  or  disposition  of  its 
property,  on  the  ground  that  his  answer  may  ex^iose 
the  corporation  to  a  forfeiture  of  any  of  its  corporate 
rights,  or  will  tend  to  convict  him  of  a  criminal  offense, 
or  to  subject  him  to  a  penalty  or  forfeiture.  But  his 
testimony  shall  not  be  used,  as  evidence  against  him,  in 
a  criminal  action  or  special  ])r<;ceeding.  (Co.  Civ.  Proc. 
§  1805). 

As  to  the  manner  of  compelling  the  attendance  of 
witnesses  and  the  ])roduction-  of  books  and  papers  by  a 
corporation,  and  the  proof  of  their  acts  and  trans- 
actions, see  volume  II,  pp.  87,  102.  The  officers  of  a 
new  corporation,  which  has  substantially  succeeded  the 
old  one,  will  not  be  ordered  summarily  to  deliver  the 
books  of  such  old  corporation  to  a  receiver  of  such  cor- 
poration, without  a  hearing  being  accorded  such  new 
corporation.  {Olmsted  v.  I\*.  cfc  P.  R.  I\.  Co.,  46  Hun, 
552). 

Subdivision   6. — Amendment  of   Pleadings   for   Mis- 
.TOiNDEu  OF  Parties. 

Where  an  action,  authorized  by  a  law  of  the  state,  is 
brought  against  one  or  more  persons,  as  stockholders  of 
a  corporation  or  joint-stock  association,  an  objection  to 
any  of  the  proceedings  cannot  be  taken,  by  a  person 
properh'  made  a  defendant  in  the  action,  on  the  ground 
that  the  plaintiff  has  joined  with  him,  as  a  defendant  in 
the  action,  a  person,  whose  name  appears  on  the  stock- 
books  of  the  corporation  or  association,  as  a  stockholder 
thereof,  by  the  name  so  appearing;  but  who  is  mis- 
named, or  dead,  or  is  not  liable  for  any  cause.  In  such 
a  case,  the  court  may,  at  any  time  before  final  judgment, 
TToon  motion  of  (>ither  party,  amend  the  pleadings  and 


ACTIONS  RELATING  TO  CORPORATIONS.       337 

other  papers,  without  prejudice  to  the  previous  pro- 
ceedings, by  substituting  the  true  name  of  the  person 
intended,  or  by  striking  out  the  name  of  the  person  who 
is  dead,  or  not  liable,  and,  in  a  proper  case,  inserting 
the  name  of  his  representative  or  successor.  (Co.  Civ. 
Proc.  §  1813). 

The  subject  of  amendments  to  pleadings  has  been 
fully  discussed  in  vol.  I,  p.  361,  et  seq.  The  rules  in 
regard  to  amendments  to  pleadings  in  actions  by  or 
against  corporations  are  the  same  as  in  other  actions. 

Sec.    4.   Judgment. 

A  final  judgment  in  an  action,  brought  against  a  cor- 
poration, as  prescribed  in  article  3  of  title  2  of  chapter 
XV  of  the  code,  either  separately  or  in  conjunction  with 
its  stockholders,  directors,  trustees  or  other  officers, 
must  provide  for  a  just  and  fair  distribution  of  the 
property  of  the  corporation,  and  of  the  proceeds  thereof, 
among  its  fair  and  honest  creditors,  in  the  order  and  in 
the  proportions  prescribed  by  law,  in  case  of  the  volun- 
tarv  dissolution  of  a  corporation.  (Co.  Civ.  Proc. 
§1793). 

Where  the  stockholders  of  the  corporation  are  parties 
to  the  action,  if  the  property  of  the  corporation  is  not 
sufficient  to  discharge  its  debts,  the  interlocutory  or 
final  judgment,  as  the  case  requires,  must  adjudge  that 
each  stockholder  pay  into  court  the  amount  due  and 
remaining  unpaid,  on  the  shares  of  stock  held  by  him, 
or  so  much  thereof  as  is  necessary  to  satisfy  the  debts 
of  the  corporation.      (Co.  Civ.  Proc.  §  1794). 

If  it  appears,  that  the  property  of  the  corporation, 
and  the  sums  collected  or  collectible  from  the  stock- 
holders, upon  their  stock  subscriptions,  are  or  will  be 
insufficient  to  pay  the  debts  of  the  corporation,  the  court 
must  ascertain  the  several  sums,  for  which  the  directors, 
trustees,  or  other  officers,  or  stockholders  of  the  corpo- 
ration, being  parties  to  the  action,  are  liable;  and  must 
adjudge  that  the  same  be  paid  into  court,  to  be  applied, 
in  such  proportions  and  in  such  order  as  justice  re- 
quires, to  the  payment  of  the  debts  of  the  corporation. 
22 


333  i'UACTlCE. 

(Co.  Civ.  Proc.  §  1795).  This  section  ouly  applies 
where  the  action  is  brought,  under  section  1780,  by  a 
creditor — not  by  the  attorney-general.  {People  v.  Com- 
mercial JianJ:,  37  ^lisc.  10;  alfd.  on  op.  below,  72  App. 
Div.  033  j. 

As  to  the  appointment  of  a  receiver  by  or  before  final 
judgment,  see  vol.  I,  p.  727,  et  seq.  The  provisions  of 
the  various  statutes  regulating  the  appointment  of  re- 
ceivers of  corporations  and  the  proceedings  before  such 
receivers  are  fully  discussed  in  vol.  I,  p.  734,  et  seq. 

The  same  steps  should  be  taken  where  the  defendant 
is  in  default  as  in  other  cases.  (See  vol.  II,  p.  265). 
The  final  decree  or  judgment  in  an  action  to  dissolve  a 
corporation  is  for  the  benefit  of  all  (Morgan  v.  N.  Y.  & 
Alh.  R.  R.  Co.,  10  Paige,  290)  ;  and  not  merely  for  the 
benefit  of  the  party  bringing  the  action.  (Id.).  The 
provision  of  section  1793,  that  the  judgment  must  pro- 
vide for  a  just  and  fair  distribution,  etc.,  overrides  the 
provision  of  general  rule  30,  to  the  effect  that  a  report 
shall  stand  confirmed  unless  exceptions  are  filed  to  it. 
{People  v.  Am.  Loan  &  Tr.  Co.,  Ill  N.  Y.  467).  Under 
section  1794  the  fact  that  a  stockholder  has  had  put  to 
his  credit  on  the  books  a  dividend  wrongfully  declared, 
does  not  amount  to  a  payment  by  him  of  the  amount  of 
such  dividend.  (Hagory  v.  Dubois,  3  Sand.  Ch.  460). 
A  person  in  whose  name  the  stock  stands  on  the  liooks 
is  the  stockholder  for  the  purposes  of  the  suit,  although 
in  fact  he  has  transferred  the  stock  {Mann  v.  Currie, 
2  Barb.  294),  except  where  the  corporation  has  recog- 
nized the  transferee  as  owner.  {Cutting  v.  Damerel, 
88  N.  Y.  410 ) .  Of  course,  where  there  has  been  a  sale 
though  no  transfer  on  the  books  and  the  vendor  is  com- 
pelled to  pay  an  adjudged  liability  on  the  stock,  he  can 
recover  against  the  vendee  the  amount  so  paid.  {John- 
son v.  Underhill,  52  N.  Y.  203).  After  a  transfer  on 
the  books,  the  transferee  is  liable.  {Sigua  Iron  Co.  v. 
Broicn,  171  N.  Y.  488).  AVhere  it  is  desired  to  compel 
the  payment  by  stockholders  of  the  amounts  remaining 
unpaid  on  their  stock,  they  should  be  joined  as  parties 
to  the  action;  and  if  not  so  joined,  they  should  be  joined 


ACTIONS  RELATING  TO  CORPORATIONS.       339 

by  an  amendment  to  the  complaint.      {Mann  v.  Pentz, 
.3N.  Y.  415). 

In  order  to  be  effectual,  the  dissolution  of  a  corpora- 
tion must  be  judicially  ascertained  and  declared.  {Plass 
V.  Houseman,  17  N.  Y.  St.  Rep.  671).  By  omitting  to 
perform  a  duty  imposed  by  its  charter,  a  corporation 
does  not,  therefore,  lose  its  corporate  character.  (Day 
V.  Ogdensburgli,  etc.,  R.  R.  Co.,  107  N.  Y.  129 ) .  A  judg- 
ment of  dissolution  operates  as  a  termination  of  all 
pending  actions;  and  proceedings  subsequent  to  such 
dissolution  are  void  {McCulloch  v.  Nonoood,  58  N.  Y. 
562),  unless  some  statute  provides  that  the  cause  of 
action  shall  survive.  (See  Marstaller  v.  Mills,  143 
N.  Y.  398).  As  to  the  power  of  the  court  in  voluntary 
dissolution,  see  section  2419  of  the  code,  and  the  sec- 
tions following.  They  have  nothing  to  do  with  the 
action  to  dissolve  a  corporation.  A  corporation  may 
appeal  from  a  judgment  declaring  it  dissolved.  {Kelsey 
V.  Pfaudler  Process  Co.,  45  Hun,  10).  As  to  the  entry 
of  judgment  and  the  docketing  of  the  same,  see  vol.  II, 
pp.  680,  685,  et  seq.  The  same  rules  with  respect  to 
proceedings  on  appeal  apply  in  these  cases,  as  in  other 
actions,  and  have  been  considered  in  vol.  II. 

Sec.    5.    Application  of  certain  sections. 

The  provisions  of  section  1809  of  the  code  with  regard 
to  the  granting  of  injunctions,  and  of  section  1810  with 
regard  to  the  appointment  of  a  receiver  and  of  section 
1891  with  regard  to  suspeudiug  or  removing  of  a  trustee 
or  other  ofiflcer  of  a  corporation,  apply  to  an  action  or 
a  special  proceeding,  against  a  corporation,  or  joint- 
stock  association,  created  by  or  under  the  laws  of  the 
state,  or  a  trustee,  director,  or  other  officer  thereof;  or 
against  a  corporation,  or  joint-stock  association  created 
by  or  under  the  laws  of  another  state,  government,  or 
country,  or  a  trustee,  director,  or  other  officer  thereof, 
where  the  corporation  or  association  does  business 
within  the  state,  or  has,  within  the  state,  a  business 
agency  or  a  fiscal  agency,  or  an  agency  for  the  transfer 
of  its  stock.      (Co.  Civ.  Proc.  §  1812)!^ 


340  TRACTICE. 

But,  as  \Ye  saw  by  section  1804,  quoted  in  article  I, 
section  1,  subdivision  3  above,  articles  2,  3  and  4  of  title 
2  of  chapter  XV  of  the  code  (the  provisions  of  which 
articles  are  dealt  with  in  this  chapter)  do  not  apply  to 
a  religious  corporation,  to  a  municipal  or  other  political 
corporation,  created  b}-  the  constitution,  or  b}^  or  under 
the  laws  of  the  state;  or  to  any  corporation  which  the 
regents  of  the  university  have  power  to  dissolve,  except 
upon  the  ai)plication  of  the  regents,  or  of  the  trustees 
of  such  a  corporation,  and  in  aid  of  its  liquidation  under 
such  dissolution. 

A  religious  corporation,  being  composed  not  onl}-  of 
the  trustees  but  of  the  members  of  the  organization,  is 
governed  by  the  ordinar^^  rules  of  the  common  law,  and 
not  by  the  sections  of  the  code  referred  to  in  this  chap- 
ter.     {Robertson  v.  Bullions,  11  N.  Y.  243). 

Article  3  of  title  2  of  chapter  XY  of  the  code  (§§  1784- 
171)6,  inclusive),  does  not  repeal  or  affect  any  special 
provision  of  law,  prescribing  that  a  particular  kind  of 
corporation  shall  cease  to  exist,  or  shall  be  dissolved, 
in  a  case  or  in  a  manner,  not  prescribed  in  said  article; 
or  any  special  provision  of  law,  prescribing  the  mode  of 
enforcing  the  liability  of  the  stockholders  of  a  particular 
kind  of  corporation.      (Co.  Civ.  Proc.  §  1796). 


ARTICLE  III. 

TO   ANNUL   A    CORPORATION. 
SECTION. 

1.  In  what  cases. 

2.  Proceedings  in  the  action. 

3.  Final  judgment. 

Sec.    1.    In  what  cases. 

The  attorney-general,  whenever  he  is  so  directed  by 
the  legislature,  must  bring  an  action  against  a  corpora- 
tion created  by  or  under  the  laws  of  the  state,  to  pro- 
cure a  judgment,  vacating  or  annulling  the  act  of  incor- 
poration, or  any  act  renewing  the  corporation,  or  con- 
tinuing its  corporate  existence,  upon  the  ground  that 


ACTIONS  RELATING  TO  CORPORATIONS.       341 

the  act  was  procured  upon  a  fraudulent  suggestion,  or 
the  concealment  of  a  material  fact,  made  by  or  with  the 
knowledge  and  consent  of  any  of  the  persons  incorpo- 
rated.     (Co.  Civ.  Proc.  §  1797). 

Upon  leave  being  granted,  as  prescribed  in  section 
1799,  the  attorney-general  may  bring  an  action  against 
a  corporation  created  by  or  under  the  laws  of  the  state, 
to  procure  a  judgment,  vacating  the  charter  or  annulling 
the  existence  of  the  corporation,  upon  the  ground  that 
it  has,  either: 

1.  Offended  against  any  provision  of  an  act,  by  or 
under  which  it  was  created,  altered  or  renewed,  or  an 
act  amending  the  same,  and  applicable  to  the  corpora- 
tion; or, 

2.  Violated  any  provision  of  law,  whereby  it  has  for- 
feited its  charter,  or  become  liable  to  be  dissolved,  by 
the  abuse  of  its  powers ;  or, 

3.  Forfeited  its  privileges  or  franchises,  by  a  failure 
to  exercise  its  powers ;  or, 

4.  Done  or  omitted  any  act,  which  amounts  to  a  sur- 
render of  its  corporate  rights,  privileges,  or  fran- 
chises; or, 

5.  Exercised  a  privilege  or  franchise,  not  conferred 
upon  it  by  law.      (Co.  Civ.  Proc.  §  1798). 

Before  granting  leave,  the  court  may,  in  its  discre- 
tion, require  such  previous  notice  of  the  application  as 
it  thinks  proper,  to  be  given  to  the  corporation,  or  any 
officer  thereof,  and  may  hear  the  corporation  in  opposi- 
tion thereto.      (Co.  Civ.  Proc.  §  1799). 

As  to  the  leave  to  sue  in  such  cases,  see  vol.  I,  p.  128, 
et  seq.  A  domestic  corporation  is  a  creature  of  the  law 
and  is  absolutely  amenable  to  the  law;  and  where  it  vio- 
lates the  very  law  of  its  existence,  or  any  of  the  provi- 
sions of  that  law,  or  abuses  its  powers  or  does  or  omits 
to  do  acts  which  amount  to  a  forfeiture  or  surrender  of 
its  corporate  rights,  it  opens  the  door  at  once  to  having 
its  charter  taken  away  and  its  existence  annulled.  But 
it  is  to  be  noted  that  section  1798  is  not  self-executing; 
to  effect  a  termination  of  the  corporate  existence,  for 
the  causes  named  in  the  section,  the  state,  through  the 
attorney-general,  must  not  only  elect  to  enforce  the  for- 


342  PRACTICE. 

feiture,  but  must  also  procure  leave  of  the  court  to  bring 
au  action  for  that  purpose;  and,  even  then,  such  action 
is  not  maintainable,  as  for  a  failure  to  exercise  its  fran- 
chises, unless  some  public  interest  is  involved  A\hich 
re<iuires  the  exercise  f)f  the  franchise  by  the  corporation. 
{People  V.  U.  &  D.  R.  R.  Co.,  128  N.  Y.  240).  Where 
the  attorney-ueneral  has  determined  to  enforce  the  for- 
feiture and  the  court  has  granted  leave  to  bring  the 
action,  and  the  statute  provides  for  a  dissolution  on  the 
facts  shown,  the  court  has  no  discretion  but  must  de- 
cree the  dissolution.  [People  v.  Buffalo  Stone,  etc.,  Co., 
131  N.  Y.  140).  The  legislature  usually  in  creating  a 
corporation  by  special  act,  and  in  general  acts  under 
or  by  virtue  of  which  corporations  may  be  organized, 
provides  by  specially  reserving  to  itself  that  power,  the 
right  to  amend,  modify  or  annul  any  corporation 
created  by  it.  But  the  vested  rights  of  parties  who 
have  dealt  with  the  corporation  are,  however,  to  be  pro- 
tected, so  far  as  lies  in  the  power  of  the  courts.  Where 
the  law  creating  a  corporation  gives  it  certain  powers, 
the  mere  omission  to  exercise  those  powers  is  not  such 
an  abuse  of  its  powers  or  privileges  as  to  Avork  a  for- 
feiture. (Atty-Genl.  v.  Bank  of  Niagara,  Hopk.  Ch. 
354).  Section  1798  furnishes  no  rule  of  liability  as  ta 
dissolution  for  non-user,  but  simply  points  out  the 
remedy;  section  1785,  above  dealt  with,  prescribes  the 
requisite  period  of  non-user,  namely,  one  year.  (People 
V.  Atlantic  Ave.  R.  R.  Co.,  125  N.  Y.  513).  But  suffer- 
ing an  act  to  be  done  which  destroys  the  end  and  object 
of  its  creation,  is  equivalent  to  a  surrender.  (Slee  v. 
Bloom,  19  Johns.  456).  Where  the  legislature  reserves 
the  right  to  repeal  the  act  of  incorporation,  it  may  by  a 
subsequent  act  exercise  that  power,  and  annul  the  cor- 
poration, though  it  may  not  enact  that  the  property  of 
the  corporation  should  become  the  property  of  another 
corporation,  or  impair  contract  rights.  {People  v. 
O'Brien,  111  N.  Y.  1).  Where  a  corporation  engages 
in  transactions  upon  which  its  charter  is  silent,  it  as- 
sumes the  same  liabilities  that  an  individual  would  by 
engaging  in  the  same  transactions.  {Smith  v.  Gold 
Stock  Tel.  Co.,  42  Hun,  454).     In  most,  if  not  all  of  the- 


ACTIONS  RELATING  TO  CORPORATIONS.       343 

cases  in  the  books,  where  the  action  is  brought  to  annul 
a  corporation  on  the  ground  that  it  has  suspended  its 
business  for  more  than  a  year,  actual  abandonment  of 
the  business  has  been  shown,  or  a  suspension  for  more 
than  a  year  with  no  effort  whatever  to  carry  it  on,  and 
no  intention  to  resume;  and  such  intention  has  gener- 
ally^ been  accompanied  by  insolvency  or  pecuniary  em- 
barrassment; but  where  such  facts  are  not  shown,  the 
court  is  not  at  liberty  to  find  such  an  abandonment, 
even  though  the  corporation  parted  with  certain  of  its 
rights,  and  omitted  in  some  years  to  elect  trustees,  and 
its  business  was  conducted  under  a  new  control.  {Kel- 
sey  v,  Ffaudler  Process  Co.,  45  Hun,  10).  A  cause 
which  is  sufficient  to  forfeit  a  charter  cannot  be  taken 
advantage  of  collaterally,  or  in  any  other  mode  than  by 
a  direct  proceeding  for  that  purpose.  [Magee  v. 
Geneseo  Academy ,  17  N.  Y.  St.  Rep.  221).  If  no  direct 
action  on  that  ground  has  been  brought,  that  fact  is  a 
perfect  defense  to  an  action  to  distribute  the  corporate 
funds  of  such  corporation,  although  there  has  been  a 
discontinuance  of  the  exercise  of  the  coporate  powers. 
(Id.). 

Sec.    2.    Proceedings  in  the   action. 

The  proceedings  in  the  action  are  the  same  as  in  an 
action  to  dissolve  a  corporation.  It  has  been  said, 
however,  that  this  action  may  be  brought  by  the  attor- 
ney-general in  the  name  of  the  people  on  the  relation  of 
a  party  in  interest  {People  ex  rel.  Hearst  v.  Ramapo 
Water  Co.,  51  App.  Div.  145),  but  it  would  seem,  under 
the  decisions,  that  w^hether  the  action  can  be  brought 
on  the  relation  of  a  private  person  depends  upon  the 
nature  of  the  cause  for  which  the  forfeiture  is  sought. 
(See  People  v.  Buffalo  Stone,  etc.,  Co.,  131  N.  Y.  140). 
Of  course,  the  complaint  in  an  action,  under  this  sec- 
tion, should  show  that  leave  to  sue  has  been  granted. 
(People  ex  rel.  Hearst  v.  Ramapo  Water  Co.,  supra). 

In  an  action,  to  annul  a  corporation,  an  injunction 
order  may  be  granted,  at  anj'^  stage  of  the  action,  re- 
straining the  corporation,  and  any  or  all  of  its  directors, 
trustees,  and  other  officers,  from  exercising  any  of  its 


344  PRACTICE. 

corporate  rights,  privileges,  or  Iraiicliises;  or  from  exer- 
cising certain  of  its  corporate  rigiits,  privileges,  or 
franchises,  specilied  in  the  injunction  order;  or  from 
exercising  any  franchise,  liberty,  or  pi-ivilege,  or  trans- 
acting any  business,  not  allowed  by  law.  SSuch  an  in- 
junction is  deemed  one  of  those  specified  in  section  G03 
of  the  code,  and  all  the  provisions  of  title  2  of  chapter 
VII  of  the  code,  applicable  to  an  injunction  specified  in 
that  section,  apply  to  an  injunction  granted  as  pre- 
scribed in  this  section,  except  that  it  can  be  granted 
only  by  the  court.      (Co.  Civ.  Proc.  §  1802). 

For  a  discussion  of  section  603  and  the  other  sections 
of  title  2  of  chapter  VII  of  the  code,  see  vol.  I,  p.  544, 
et  seq. 

A  receiver  of  its  property,  an  order  requiring  the  cred- 
itors to  prove  their  claims,  or  requiring  a  stockholder  or 
other  officer  of  the  corporation  to  testify  in  an  action, 
and  the  power  to  amend  the  complaint  in  case  of  a  mis- 
joinder of  parties,  are  all  the  same  in  this  action  as  in 
the  action  to  dissolve  a  corporation,  and  have  been 
treated  of  in  article  II,  supra. 

An  action  to  annul  a  corporation,  is  triable,  of  course 
and  of  right,  by  a  jury,  as  if  it  was  an  action  specified 
in  section  968  of  the  code,  and  without  procuring  an 
order,  as  prescribed  in  section  970  of  the  code.  (Co. 
Civ.  Proc.  §  1800).  As  to  the  settlement  of  issues  in 
such  an  action,  see  vol.  II,  p.  224. 

Sec.    3.    Final  judgment. 

Where  any  of  the  matters,  specified  in  section  1797 
or  section  1798  of  the  code,  are  established  in  an  action, 
brought  as  prescribed  in  either  of  those  sections,  the 
court  may  render  final  judgment  that  the  corporation, 
and  each  officer  thereof,  be  perpetually  enjoined  from 
exercising  any  of  its  corporate  rights,  privileges,  and 
franchises;  and  that  it  be  dissolved.  The  judgment 
must  also  provide  for  the  appointment  of  a  receiver,  the 
taking  of  an  account,  and  the  distribution  of  the  prop- 
erty of  the  corporation,  among  its  creditors  and  stock- 
holders, as  where  a  corporation  is  dissolved  upon  its 


ACTIONS  RELATING  TO  CORPORATIONS.       345 

voluntar}'   application,  as  prescribed  in  chapter  XVII 
of  the  code.      (Co.  Civ.  Proc.  §  1801). 

Where  final  judgment  is  rendered  against  a  corpora- 
tion, in  an  action,  brought  to  annul  a  corporation,  the 
attorney-general  must  cause  a  copy  of  the  judgment-roll 
to  be  forthwith  filed  in  the  office  of  the  secretary  of 
state;  who  must  cause  a  notice  of  the  substance  and 
effect  of  the  judgment,  to  be  published,  for  four  weeks, 
in  the  newspaper  printed  at  Albany,  in  which  legal 
notices  are  required  to  be  published,  and  also  in  a  news- 
paper printed  in  the  county,  wherein  the  principal  place 
of  business  of  the  corporation  was  located.  (Co.  Civ. 
Proc.  §  1803).  See,  also,  vol.  II,  p.  683.  It  is  to  be 
noted  that  the  state  paper  has  been  abolished.  (The 
Executive  Law,  §  74). 

A  corporation  may  be  dissolved  by  a  surrender  of  its 
charter  and  its  acceptance  by  the  state;  but  it  cannot 
be  held  to  be  actually  dissolved  until  so  adjudged  and 
determined  either  by  judicial  sentence  or  sovereign  will. 
{Magee  v.  Genesco  Academy,  17  N.  Y.  St.  Rep.  221). 

The  manner  of  conducting  the  proceeding  by  the 
attorney-general  and  of  the  filing  of  the  judgment-roll 
and  the  publication  of  the  notice  is  of  course  of  im- 
portance principally  to  that  officer,  and  does  not  need 
much  consideration  for  general  practice. 

There  are  also  statutory  provisions  for  the  winding 
up  of  a  corporation  when  it  is  dissolved  by  act  of  the 
legislature.  (See  laws  1886,  chap.  310,  §§  1-10  [1 
Birdseye's  Rev.  Stat.,  etc.,  pp.  765-768]).  It  is  not 
necessary  to  discuss  such  provisions  here.  It  is  to  be 
noted  that  it  requires  strong  and  unmistakable  language 
in  an  act  of  the  legislature  to  justify  the  inference  that 
it  intended  to  direct  the  dissolution  of  a  corporation 
without  judicial  proceedings  on  the  intervention  of  the 
attorney-general.  {Matter  of  N.  Y.  &  L.  I.  Bridge  Co., 
148  N.  Y.  540). 


CHAPTER  LVII. 

ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT. 


ARTICLE  I . .  .  .  Action  by  or  against  executors  or  administrators. 
ARTICLE  II . .  .  Reference  of  claims  against  the  estate  of  a  decedent. 
ARTICLE  III.. Action   by   creditor   of    decedent   against   next   of   kin, 

legatee,  heir  or  devisee. 
ARTICLE  IV.. Action  to  establish  a  will. 
ARTICLE  V  .  .  .Action  for  the  construction  of  a  will. 
ARTICLE  VI.. Action  determining  validity  of   the  probate  of   a  will. 


ARTICLE  I. 

ACTION    BY    OR    AGAINST   EXECUTORS    OR    ADMINISTRATORS. 

SECTION. 

1.  In  what  way  action  may  be  brought  by  or  against  them. 

2.  Action  for  legacy  or  distributive  share. 

3.  Regulations   respecting   action   by   or   against   executors   or    ad- 

ministrators. 

4.  Limitation  of  action  on  disputed  claim. 

Sec.    1.    In.   \irhat    xiray    action    may   be    brought   by    or    against 
tbem. 

An  action  or  special  proceeding,  hereafter  commenced 
by  an  executor  or  administrator,  upon  a  cause  of  action, 
belonging  to  him  in  his  representative  capacity,  or  an 
action  or  special  proceeding,  hereafter  commenced 
against  him,  except  where  it  is  brought  to  charge  him 
personally,  must  be  brought  by  or  against  him  in  his 
representative  capacity.      (Co.  Civ.  Proc.  §  1814). 

An  action  may  be  brought  against  an  executor  or  ad- 
ministrator, personally,  and  also  in  his  representative 
capacity,  in  either  of  the  following  cases : 

1.  Where  the  complaint  sets  forth  a  cause  of  action 
against  him  in  both  capacities,  or  states  facts,  which 

(347) 


348  PRACTICE. 

render   it   imcerlaiii,   in   which   capacity   the   cause   of 
action  exists  against  him. 

2.  Where  the  complaint  sets  forth  two  or  more  causes 
of  action  against  the  defendant,  in  different  capacities, 
all  of  which  grow  out  of  the  same  transaction,  or  trans- 
actions connected  with  the  same  subject  of  action;  do 
not  require  different  places  or  modes  of  trial;  and  are 
not  inconsistent  with  each  other.  (Co.  Civ.  Proc. 
§  1815). 

The  authorities  upon  the  question  whether  an  execu- 
tor should  sue  or  be  sued  individually^  or  in  his  repre- 
sentative capacity,  are  found  at  volume  I,  page  149. 
Section  1814  above  quoted  includes  onl}^  such  causes  of 
action  as  accrued  during  the  life  time  of  the  decedent, 
or  are  founded  upon  a  contract  made  by  him.  (Buck- 
land  V.  Gallup,  105  N.  Y.  453).  The  effect  of  the  sec- 
tion and  the  change  produced  by  it,  is  upon  the  class  of 
cases  in  which  the  action  could  have  been  maintained 
in  either  form ;  as  where  upon  a  contract  made  with  the 
testator  the  cause  of  action  accrued  after  his  death ;  or 
wdiere  upon  a  debt  or  obligation  due  to  the  deceased, 
the  executor  or  administrator  has  taken  a  new  security 
or  evidence  of  debt.  {Thompson  V.  Whitmarsh,  100 
N.  Y.  35).  The  distinction  is  between  a  cause  of  action 
accruing  on  the  contract  made  with  the  representative, 
as  distinguished  from  one  devolving  upon  him  in  that 
capacity  by  the  creation  of  the  trust  or  representative 
relation.  (Bucldand  v.  Gallup,  supra).  The  section 
has  made  no  change  in  the  law^  which  existed  before  its 
passage.  (Binfjham  v.  Marine  Natl.  Bank,  41  Hun, 
377;  affd.,  112  X.  Y.  661 ;  7^«r/t-er  v.  Day,  155  N.  Y.  383). 
Where  the  business  of  the  testator  was  carried  on  by 
the  executor  pursuant  to  directions  contained  in  the 
will,  and  in  doing  so,  the  executor  contracted  debts  and 
it  appears  that  he  is  personally  insolvent,  an  action 
may  be  maintained  by  the  owner  of  such  debts  against 
the  executor  in  his  representative  capacitj^  {Willis  v. 
marp,  43  Hun,  434;  affd.,  113  N.  Y.  586).  But  an 
action  at  law  c&nnot  be  maintained  against  him  in  a 
representative  capacity  for  repairs  made  at  his  request 
to  real  property  of  decedent,  although  empowered  by 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   349 

decedent's  will  to  make  such  repairs.  {O'Brien  v. 
Jackson ;,  167  N.  Y.  31).  Where  the  real  estate  of  the 
testator  is  to  be  converted  into  personalty,  and  the  exe- 
cutor is  emjDOwered  to  sell,  and  is  entitled  to  the  posses- 
sion of  the  realty,  he  may  bring  an  action  in  his  repre- 
sentativ^e  capacity  to  recover  damages  for  waste.  ( Ogs- 
hury  V.  Ogshury,  45  Hun,  388;  affd.,  115  N.  Y.  290). 
Where  the  action  is  brought  by  or  against  the  executor 
upon  a  contract  made  by  him  with  regard  to  the  affairs 
of  the  estate,  claims  due  from  or  to  the  decedent  are  not 
proper  subjects  of  counterclaim.  {Tlwni'pson  v.  Mniit- 
marsh^  100  N.  Y.  35).  But  when  all  the  debts  of  his 
testator  have  been  paid  an  executor  who  is  sole  legatee 
may  avail  himself  of  a  chose  in  action  belonging  to  the 
estate  as  a  counterclaim  to  an  action  against  him  for 
funeral  expenses.  (Blood  v.  Kane,  130  N.  Y.  514). 
As  a  general  rule  the  right  of  action  for  the  funeral  ex- 
penses of  a  decedent  is  against  his  executor  personally 
(Matter  of  Schul^,  26  Misc.  688)  ;  but  the  right  to  sue 
him  in  a  representative  capacity  has  been  upheld  under 
certain  circumstances.  (Riley  v.  Waller,  22  Misc.  63; 
Patterson  v.  Buchanan,  40  App.  Div.  493).  It  is  stated 
in  Throop's  note  to  section  1815,  that  the  second  sub- 
division of  that  section  is  designed  to  extend  to  the 
cases  therein  mentioned  the  same  rule  which  is  laid 
down  in  section  484  of  the  code,  subdivision  9.  (Vol. 
I,  pp.  411,  414).  It  was  held  in  Ross  v.  Harden  (44 
N.  Y.  Super.  Ct.  Rep.  26)  where  the  action  was  brought 
for  services  rendered  in  and  about  the  custody  and 
preservation  of  the  decedent's  estate,  after  his  decease, 
but  at  his  request,  as  well  as  the  request  of  the  personal 
representatives,  that  the  cause  of  action  upon  the  re- 
quest of  the  decedent,  could  not  be  joined  with  that 
against  the  personal  representatives,  although  both 
accrued  out  of  the  same  transaction.  The  second  sub- 
division of  section  1815  changes  the  rule  in  that  respect. 
Where  an  administrator  wrongfully  revokes  a  submis- 
sion to  arbitration  of  a  matter  connected  with  his  de- 
cedent's estate,  an  action  can  be  maintained  against  him 
both  in  his  individual  and  in  his  representative  capac- 
ity.    {Magoun  V.  Magoun,  84  App.  Div.  232).    So  where 


350  PRACTICE. 

the  administratrix  with  the  will  annexed  was  also  sole 
legatee  and  sole  devisee  under  the  will  it  was  held  that 
an  action  to  recover  a  debt  owing  by  decedent  to  plain- 
tiff Avas  properly  brought  against  her  both  as  adminis- 
tratrix, and  individually  as  devisee.  {De  Crano  v, 
Moore,  50  App.  Div.  361).  See,  also,  on  this  subject, 
Rogers  v.  M'heeler  (89  App.  Div.  535).  For  an  example 
of  the  application  of  subdivision  1  of  section  1815,  see 
Metropolitan  Trust  Co.  v.  McDonald  (52  App.  Div. 
424). 

Sec.    2.   Action  for  legacy  or  distributive  share. 

If,  after  the  expiration  of  one  year  from  the  granting 
of  letters  testamentary  or  letters  of  administration,  an 
executor  or  administrator  refuses,  upon  demand,  to  pay 
a  legacy,  or  distributive  share,  the  person  entitled 
thereto  may  maintain  such  an  action  against  him,  as 
the  case  requires.  But  for  the  purpose  of  computing 
the  time,  within  which  such  an  action  must  be  com- 
menced, the  cause  of  action  is  deemed  to  accrue,  when 
the  executor's  or  administrator's  account  is  judicially 
settled,  and  not  before.      (Co.  Oiv.  Proc.  §  1819). 

The  revised  statutes  (2  Rev.  Stat.  114,  §  9)  which 
authorized  an  action  for  a  legacy,  required  that  it  must 
appear  that  the  personal  representative  had  more  than 
sufficient  assets  to  discharge  the  debts  of  the  decedent, 
and  that  before  bringing  the  action  the  plaintiff  should 
give  a  bond  to  refund  the  legacy  recovered  by  him  or  so 
much  as  might  be  necessary  to  pay  any  debts  which 
might  thereafter  be  established.  These  things  are  not 
required  by  section  1819  of  the  code.  The  fact  of  the 
existence  of  assets,  is  now  only  the  subject  of  inquiry 
before  the  surrogate  on  application  for  leave  to  issue 
execution.  Except  for  the  statute,  the  remedy  against 
an  executor  who  refused  to  pay  a  legacy  was  one  in 
equity.  (Felletreau  v.  Rathhone,  18  Johns.  428).  The 
action  cannot  now  be  lirought  under  this  statute  for  a 
distributive  share  against  a  foreign  administrator,  ex- 
cept upon  his  express  promise  to  pay  or  upon  proof  that 
there  is  property  or  assets  in  this  state  which  may  be 
applied  to   its  payment.      Practically  the  courts   act 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      351 

in  rem  upon  the  property  tlirougli  the  form  of  an  action 
against  the  administrator.  {Fisher  v.  Fisher,  50  N.  Y. 
Super.  Ct.  Rep.  74).  In  an  action  for  a  legacy  each 
legatee  may  sue  separately  unless  he  is  a  residuary 
legatee;  in  which  case,  as  an  accounting  may  be  neces- 
sary, other  legatees  must  be  joined.  {Cromer  v.  Pinck- 
ney,  3  Barb.  Ch.  466;  To7inelle  v.  Hall,  3  Abb.  Pr.  205). 
If  the  legacy  sued  for  is  a  charge  on  real  estate,  the  heir 
or  devisee  is  a  necessary  party  defendant.  ( Tonnelle  v. 
Hall,  supra).  The  action  should  in  each  case,  be 
brought  against  the  executor  in  his  representative 
capacity.  The  fact  that  the  executor  has  failed  to  pay 
the  full  amount  of  the  legacy  will  not  authorize  an 
action  individually,  unless  it  appears  that  he  has  be- 
come personally  liable  therefor,  by  reason  of  some 
illegal  or  improper  conduct,  or  that  he  himself  claims 
to  be  entitled  to  retain  the  money  out  of  which  the 
legacy  is  claimed.  {Hurlhut  v.  Durant,  21  Hun,  481). 
The  action  may  be  brought  at  once  after  the  expiration 
of  the  one  year  from  the  granting  of  letters;  it  is  not 
necessary  to  wait  until  there  is  an  accounting.  {Con- 
gregational Unitarian  Soc.  v.  Hale,  29  App.  Div.  396). 
The  six  years  statute  of  limitations  applies  to  these 
actions.  {Rundle  v.  Allison,  34  N.  Y.  180;  Butler  v. 
Johnson,  111  N.  Y.  204).  Before  the  code  of  civil 
procedure,  it  was  held  that  the  statute  began  to  run  at 
the  expiration  of  one  year  from  the  granting  of  letters. 
{American  Bible  Soc.  v.  Hehard,  51  Barb.  552;  affd., 
41  N.  Y".  619  n).  This  rule  has  now  been  changed  by 
section  1819  of  the  code.  Section  410  of  the  code  (vol. 
I,  p.  112)  applies  to  these  actions;  and  the  statute 
begins  to  run  when  the  person  having  the  right  to  make 
a  demand,  has  actual  knowledge  of  the  facts  on  which 
the  right  to  make  the  demand  depends.  {Estate  of  Clay- 
ton, 22  N.  Y.  St.  Rep.  886).  A  proceeding  in  the  surro- 
gate's court  instituted  by  an  administrator  de  bonis  non 
to  compel  the  executor  of  the  deceased  administrator  to 
account  for  the  assets  of  the  first  estate,  is  controlled 
by  the  ten  years'  statute  of  limitations,  even  though  such 
administrator  de  bonis  non  is  also  next  of  kin  of  his 
deceased  predecessor.       {Matter  of  Rogers,  153  N.  Y. 


352  PRACTICE. 

316).  Section  1819  is  not  applicable  to  proceedings  in 
surrogate's  courts.  [Mutter  of  Miller,  15  Misc.  55G). 
See,  also,  Matter  of  Taylor  (30  App.  Div.  213),  and 
Matter  of  LoiH/holJtam  (38  App.  Div.  GOT).  An  action 
for  a  legacy  brought  under  this  section  is  a  bar  to  pro- 
ceedings in  the  surrogate's  court  to  compel  an  executor 
to  pay  it.  (Lewis  v.  Moloney,  12  Ilun,  207).  A  de- 
mand and  refusal  are  essential.  {Conkllng  v.  Weather- 
loax,  90  App.  Div.  585).  Where  the  defendant  denies 
that  a  demand  has  been  made  for  a  legacy,  an  issue  is 
raised,  which  must  be  tried.  {Kennagh  v.  McGoUjan, 
4  N.  Y.  Supp.  230;  s.  c,  21  N.  Y.  St.  Rep.  326). 

The  guardian  ud  litem  of  an  infant,  in  whose  favor  an 
action  is  brought,  as  prescribed  in  section  1819,  must, 
unless  he  is  also  the  general  guardian,  execute  and  file 
with  the  clerk,  before  the  commencement  of  the  action, 
a  bond  to  the  infant,  with  at  least  two  sufficient  sureties, 
in  a  penalty  fixed  by  a  judge  of  the  court,  conditioned 
that  the  guardian  will  duly  account  to  the  infant,  when 
he  attains  full  age,  or,  in  case  of  his  death,  to  his  per- 
sonal representatives,  for  all  money  or  property,  which 
the  guardian  msij  receive,  by  reason  of  the  legacy  or  dis- 
tributive share.  ^  (Co.  Civ.  Proc.  §  1820). 

In  an  action  brought  by  the  committee  of  an  incom- 
petent to  recover  a  distributive  share  belonging  to  his 
ward,  the  question  of  the  sufficiency  of  the  committee's 
bond  cannot  be  considered.  (Wright  v.  Hayden,  31 
Misc.  116). 

Sec.    3.    Regulations  respecting  action  by  or  against  executors 
or   administrators. 

Subdivision  1. — Proceedings  in  the  Action. 

Proceedings  in  these  actions  are  the  same  as  those  in 
other  actions  of  the  same  nature. 

In  an  action  or  special  proceeding  against  two  or  more 
executors  or  administrators,  representing  the  same  de- 
cedent, all  are  considered  as  one  person ;  and  those  who 
are  first  served  with  process,  or  first  appear,  must 
answer  the  plaintiff.      Separate  answers,  by  different 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      353 

executors  or  administrators,  cannot  be  required  or 
allowed,  except  by  direction  of  the  court.  But  this 
section  does  not  affect  the  plaintiff's  right  to  bring  into 
court  all  the  executors  or  administrators,  who  are 
parties.  (Co.  Civ.  Proc.  §  1817).  See,  also,  vol.  I, 
p.  150. 

One  of  two  or  more  executors,  to  whom  letters  testa- 
mentary have  not  been  issued,  is  not  a  necessary  party 
to  an  action  or  special  proceeding,  in  favor  of  or  against 
the  executors,  in  their  representative  capacity.  (Co. 
Civ.  Proc.  §  1818). 

All  of  the  personal  representatives  who  have  qualiflied 
must  be  joined  as  plaintiffs.  If  two  executors  are  nomi- 
nated by  the  will  of  a  non-resident,  and  both  qualified  in 
the  country  of  the  residence,  but  one  only  takes  out  let- 
ters in  this  state,  he  alone  is  a  necessary  party  to  the 
action  in  this  state.  [Laivrence  v.  Townsend,  88  N.  Y. 
24).  For  further  authorities  upon  the  subject  of  the 
necessity  of  joining  executors  or  administrators,  see  vol. 
I,  p.  150. 

The  pleadings  in  these  actions  are  the  same  and  gov- 
erned by  the  same  rules  as  pleadings  in  other  actions  for 
the  same  causes. 

In  an  action  against  an  executor  or  administrator,  in 
his  representative  capacity,  wherein  the  complaint  de- 
mands judgment  for  a  sum  of  money,  the  existence,  suf- 
ficiency, or  want  of  assets,  shall  not  be  pleaded  by  either 
party;  and  the  plaintiff's  right  of  recovery  is  not 
affected  thereby,  except  with  respect  to  the  costs  to  be 
awarded,  as  prescribed  by  law.     (Co.  Civ.  Proc.  §  1824). 

This  section  changes  the  rule  which  existed  at  com- 
mon law ;  as  we  have  seen,  in  every  case,  the  question  of 
assets  is  only  to  be  considered  by  the  surrogate  on  mo- 
tion for  relief  in  his  court. 

An  executor  or  administrator  cannot  be  made  per- 
sonally liable  to  the  adverse  party,  for  a  debt  or  for  dam- 
ages, by  reason  of  his  having  made  a  false  allegation  in 
pleading.     (Co.  Civ.  Proc.  §1831). 

In  an  action  or  special  proceeding,  to  which  an  execu- 
tor or  administrator  is  a  party,  wherein  the  question 
23 


354  PRACTICE. 

whether  he  has  adniiuistered  the  estate  of  the  decedent, 
or  any  part  thereof,  is  iu  issue,  or  is  the  subject  of  iu- 
quiry,  aud  the  iuventory  of  assets,  liled  by  hiui,  is  given 
in  evidence,  either  party  may  rebut  the  same,  by  proof, 
either : 

1.  That  au}^  property  was  omitted  in  the  inventory,  or 
was  not  returned  therein  at  its  true  value;  or 

'2.  That  any  property  has  perished,  or  has  been  lost, 
without  the  fault  of  the  executor  or  administrator;  or 
has  been  fairly  sold  by  him,  at  private  or  public  sale,  at 
a  less  price  than  the  value  so  returned;  or  that,  since  the 
return  of  the  inventoi-y,  it  has  deteriorated  or  enhanced 
in  value.     (Co.  Civ.  Proc.  §  1832). 

It  will  be  noticed  that  this  last  section  applies  to 
special  proceedings  as  well  as  to  actions,  and  to  cases 
where  an  executor  or  administrator  is  a  plaintiff,  as 
well  as  where  he  is  a  defendant. 

In  such  an  action  or  special  proceeding,  the  executor 
or  administrator  shall  not  be  charged  with  a  demand  or 
right  of  action,  included  in  the  inventory,  unless  it  ap- 
pears that  the  same  has  been  collected,  or  might  have 
been  collected,  with  due  diligence.  (Co.  Civ.  Proc.  § 
1833). 

Sections  1832  and  1833  do  not  vary  any  rule  of  evi- 
dence, respecting  any  proof,  which  an  executor  or  ad- 
ministrator may  now  make.     (Co.  Civ.  Proc.  §  1831). 

An  executor,  administrator,  or  a  person  appointed 
by  the  surrogate,  as  prescribed  in  chapter  XVIII  of  the 
code,  to  dispose  of  the  real  property  of  a  decedent,  is 
deemed  a  trustee,  appointed  by  virtue  of  a  statute, 
within  the  meaning  of  that  expression,  as  used  in  section 
7G6  of  the  code.     (Co.  Civ.  Proc.  §  1828). 

Section  TOG  of  the  code  referred  to,  and  the  authori- 
ties under  it,  will  be  found  at  volume  I,  page  824.  An 
executor  wlio  was  removed  after  appealing  from  a  judg- 
ment against  him,  has  the  power  to  authorize  a  person 
interested  in  the  estate  to  prosecute  the  appeal,  Avhere 
the  administrator  with  the  will  annexed  refuses  to  do 
so.     {Place  V.  Hayicard.  13  N.  Y.  St.  Kep.  288). 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   355 

■.-.4 

Subdivision  2. — Judgment  and  Execution. 

Judgment  in  actions  by  or  against  executors  or  ad- 
ministrators, is  entered  in  the  usual  way.  When  entered 
against  the  personal  representatives,  it  should  appear 
clearly  whether  it  is  entered  against  them  personally  or 
in  their  representative  capacity.  If  it  is  against  a  per- 
sonal representative  in  his  capacity  as  such,  the  judg- 
ment should  state  that  it  is  to  be  collected  out  of  the 
-assets  in  his  hands  as  executor  or  administrator.  In  the 
cases  mentioned  in  section  1815  the  statute  requires 
that  the  judgment  for  the  plaintiff  for  a  sum  of  money, 
must  distinctly  show  whether  it  is  awarded  against  the 
defendant  personally  or  in  his  representative  capacity. 
(Co.  Civ.  Proc.  §  1815). 

In  a  case  specified  in  section  1815,  or  where  costs,  to 
be  collected  out  of  the  individual  property  of  an  execu- 
tor or  administrator,  are  awarded  in  an  action  by  or 
against  him  in  his  representative  capacity,  so  much  of 
the  judgment,  as  awards  a  sum  of  money  against  him 
personally,  ma^^  be  separately  docketed,  and  a  separate 
execution  may  be  issued  thereupon,  as  if  the  judgment 
■contained  no  award  against  him  in  his  representative 
capacity.     (Co.  Civ.  Proc.  §  1816). 

Where  part  of  the  executors  or  administrators  only 
Tiave  been  served,  and  one  appears  for  all,  judgment  in 
favor  of  the  plaintiff  may  be  entered,  and  in  a  proper 
case  execution  may  be  issued  against  all  of  the  defend- 
ants as  if  they  had  all  appeared.  If  it  is  intended  that 
the  judgment  should  be  a  lien  upon  the  real  estate  of  the 
testator,  it  must  be  so  stated ;  and  such  real  estate  is  not 
bound  unless  the  judgment  is  expressly  made  by  its 
terms  a  lien  upon  specific  real  property,  therein  de- 
scribed, or  expressly  directs  the  sale  thereof.  (Co.  Civ. 
Proc.  §  1823).  As  to  the  costs  in  such  actions,  see  vol. 
II,  pp.  571,  575.  As  to  the  issue  of  execution  see  vol  II, 
p.  978,  et  seq. 


3oG  PRACTICE. 

Sur.Di VISION  3. — Effect  of  Judgment. 

Keal  property,  which  belouj^ed  to  a  dcocdont,  is  not 
bound,  or  in  any  way  affected,  by  a  judgment  against 
his  executor  or  administrator,  and  is  not  liable  to  be 
sold  by  virtue  of  an  execution  issued  upon  such  a  judg- 
ment, unless  the  judgment  is  expressly  made,  by  its 
terms,  a  lien  upon  specific  real  property  therein  de- 
scribed, or  expressly  directs  the  sale  thereof.  (Co.  Civ. 
Proc.  §  1S23). 

A  judgment  in  an  action  against  an  executor  or  ad- 
ministrator is  not  evidence  of  assets  in  his  hands.  (Co. 
Civ.  Proc.  §  1824).  A  judgment  by  default  is  not  an  ad- 
mission of  assets.  {Butler  v.  Hemstead,  18  Wend.  GG6). 
A  judgment  or  decree  against  an  executor  or  adminis- 
trator rendered  upon  a  trial  upon  the  merits  is  prltna 
facie  and  presumptive  evidence  of  the  debt  upon  any 
hearing  before  the  surrogate.  (Co.  Civ.  Proc.  §  2756). 
A  judgment  taken  after  in((uest  by  default  is  a  judg- 
ment upon  the  merits  wdthin  this  section.  {Estate  of 
Roscnficld,  5  N.  Y.  St.  Rep.  339).  Judgment  against  a 
personal  representative  does  not  entith^  the  judgment 
creditors  to  preference  over  other  creditors  of  the  same 
class.  (Co.  Civ.  Proc.  §  2719).  Such  a  judgment  is  not 
evidence  against  the  heirs  or  devisees  of  the  decedent 
in  an  action  against  them  {Sharpc  v.  Freeman,  45  N.  Y. 
802;  Piatt  v.  Piatt,  105  N.  Y.  488  i,  nor  can  supplemen- 
tary proceedings  be  instituted  upon  such  judgment. 
{Collins  V.  Beehe,  54  Hun,  318).  The  surrogate  has  no 
power  under  such  a  judgment  to  authorize  an  execution 
against  the  real  property  of  the  decedent.  {Mander  v. 
Loiv,  12  Misc.  316).  Judgment  for  costs  recovered  by 
the  defendant  in  an  action  brought  against  him  by  an 
executor,  does  not  make  hira  a  creditor  within  those 
sections  of  the  code  w^hich  authorize  creditors  to  petition 
the  surrogate's  court  for  a  decree  directing  an  execu- 
tor to  pay  his  claim.  (Hall  v.  Diismhurj/,  38  Run, 
125). 


actions  relating  to  the  estate  of  a  decedent.    357 

Subdivision  4. — Effect  of  Judgment  Against  Heir  or 
Devisee  for  Same  Cause. 

A  final  judgment  against  an  heir  or  devisee  bars  an 
action  against  tlie  executor  or  administrator  of  the  dece- 
dent, for  the  same  cause,  and  every  other  remedy  to 
enforce  payment  thereof  out  of  the  decedent's  property, 
unless  an  execution  against  property,  issued  upon  the 
judgment,  has  been  returned  wholly  or  partly  unsatis- 
fied, or  sufficient  real  property  to  satisfy  the  judgment 
has  not  descended,  or  been  devised,  to  the  judgment 
debtor.  But,  if  the  judgment  was  recovered  for  a  debt 
or  legacy,  expressly  charged  upon  the  estate  descended 
or  devised,  the  bar  is  absolute.     (Co.  Civ.  Proc.  §  1821). 

Sec.    4.    Liiiuitation  of  action  on  disputed  claim. 

Where  an  executor  or  administrator  disputes  or  re- 
jects a  claim  against  the  estate  of  a  decedent,  exhibited 
to  him,  either  before  or  after  the  commencement  of  the 
publication  of  a  notice  requiring  the  presentation  of 
claims,  as  prescribed  by  law,  unless  a  written  consent 
shall  be  filed  by  the  respective  parties  with  the  surro- 
gate that  said  claim  may  be  heard  and  determined  by 
him  upon  the  judicial  settlement  of  the  accounts  of  said 
executor  or  administrator  as  provided  by  section  2743  of 
the  code,  the  claimant  must  commence  an  action  for  the 
recovery  thereof  against  the  executor  or  administrator, 
within  six  months  after  the  dispute  or  rejection,  or  if  no 
part  of  the  debt  is  then  due,  within  six  months  after  a 
part  thereof  becomes  due ;  in  default  whereof  he,  and  all 
the  persons  claiming  under  him,  are  forever  barred  from 
maintaining  such  an  action  thereupon,  and  from  every 
other  remedy  to  enforce  payment  thereof  out  of  the  de- 
cedent's property.     (Co.  Civ.  Proc.  §  1822). 

To  set  running  the  six  months  limitation  against  an 
action  on  a  rejected  claim,  it  is  necessary  that  the  claim 
should  be  presented  in  writing  and  that  there  should  be 
an  absolute  rejection  of  it  {Ulster  County  Savings  Inst. 
V.  Yonnf/,  161  N.  Y.  23),  and  notice  of  the  rejection  must 
be  shown  to  have  been  given  to  the  claimant.  {Fotts  v. 
BaJdwin,  67  App.  Div.  434;   affd.  on  other  grounds,  173 


35S  PRACTICE. 

N.  Y.  335).  The  statute  is  penal  in  its  character  and 
must  be  complied  with  in  all  essential  particulars  to  en- 
title a  representative  to  the  benefit  of  it.  [Uoyt  v.  Bon- 
7iett,  50  N.  Y.  538).  A  claim  is  not  barred  by  the  above 
statute  where  the  executors  do  not  dispute  or  reject  it 
absolutely,,  but  merely  notify  the  claimant  that  they 
doubt  its  justice  and  invite  a  reference.  {Matter  of 
EicJuncni,  33  Misc.  322).  But  a  claim  does  not  become 
established  by  mere  silence  on  the  part  of  the  executor, 
so  as  to  give  the  surrogate  jurisdiction  to  decree  its  pay- 
ment. [.Matter  of  Callahan,  152  N.  Y.  320).  A  con- 
tingent claim  may  properlj'  be  presented  but  the  statute 
does  not  begin  to  run  until  the  claim  becomes  due. 
{Hoyt  V.  Bonnett,  50  N.  Y  538).  The  statute  does  not 
apply  where  the  administrator  at  the  time  of  the  rejec- 
tion is  a  non-resident  and  remains  without  the  state 
{Matter  of  Rasch,  26  Misc.  460 ;  Haijden  v.  Pierce,  144 
N.  Y.  512)  ;  nor  to  the  case  of  a  claimant  stayed  by  order 
of  court  during  the  period  of  such  stay.  {Wilder  v. 
Ballon,  63  Hun,  118).  A  judgment  does  not  come  within 
the  provisions  of  the  statute  and  the  six  months'  limita- 
tion is  not  applicable  to  it.  {teaman  V.  Clarke,  60  App. 
Div.  416,  422 ;  affd.  without  op.,  170  N.  Y.  594).  To  bar 
the  operation  of  the  statute  it  is  not  sufficient  that  the 
administrator  alone  file  his  consent  within  the  six 
months;  but  claimant  must  also  file  his  consent  within 
the  six  months.  (Matter  of  Brown,  76  App.  Div.  185; 
reversing  Matter  of  Fonda,  38  Misc.  407).  The  offer 
by  an  executor  after  the  rejection  of  a  claim  to  submit 
the  controversy  without  process  under  admitted  facts  is 
not  a  waiver  of  the  statute;  to  constitute  such  waiver, 
the  offer  must  be  accepted  within  six  months  and  be 
followed  by  an  actual  submission.  {Comes  v.  Wilkin, 
79  N.  Y.  129).  Nor  is  the  mere  offer  to  refer  such  dis- 
puted claim  a  Avaiver  {Xational  Bank  of  FisJikill  v. 
Sjicight,  47  X.  Y.  668)  ;  although  where  an  agreement  in 
writing  is  made  to  refer,  upon  which  the  parties 
have  acted,  although  no  referee  is  chosen,  the 
claim  will  be  regarded,  as  referred  for  the  pur- 
pose    of     avoiding     the     statute.       (Id.).     But     con- 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   359 

sent  by  an  executor  to  refer  a  claim  Avhich  lie  has 
rejected  more  than  six  months  before  is  not  a  waiver. 
{Flynn  v.  Diefendorf,  51  Hun,  194) .  Prior  to  the  amend- 
ment of  1882  the  short  statute  of  limitations  did  not 
apply  where  no  notice  to  creditors  was  published  [Mat- 
ter of  Haxtiin,  102  N.  Y.  157)  ;  but  the  fact  that  publi- 
cation was  begun  before  the  disputed  claim  matured  did 
not  have  any  bearing  upon  the  limitation  of  time  within 
which  an  action  must  be  brought  after  rejection. 
{Comes  V.  Wilkin,  supra).  The  six  months'  statute  can 
be  set  up  as  a  defense  to  an  action  against  heirs  and  next 
of  kin  to  enforce  a  claim  previously  rejected  by  the  ad- 
ministrator. (Selover  v.  Coe,  63  N.  Y.  438).  To  give 
the  surrogate  jurisdiction  to  hear  and  determine  a  dis- 
puted claim,  the  consent  must  be  in  writing.  {Matter 
of  Kirhy,  36  Misc.  312 ) .  When  a  disputed  claim  is  de- 
termined by  the  surrogate  pursuant  to  the  consent  of  the 
parties,  he  has  power  to  allow  the  claimant  costs,  lim- 
ited only  by  section  2561  of  the  code.  {Matter  of  Ingra- 
ham,  35  Misc.  577 ;  Matter  of  Coonley,  38  Misc.  219 ) . 

Upon  the  petition  of  an  executor  or  administrator, 
after  notice  of  publication  to  creditors  to  present  claims 
has  been  completed,  a  citation  may  be  issued  against  any 
claimant  directing  him  to  present  his  claim  to  the  surro- 
gate for  determination  at  a  date  not  less  than  three 
months  from  the  service  of  the  citation  upon  him.  If 
he  shall  not  have  commenced  an  action  against  the  peti- 
tioner upon  his  claim  prior  to  the  return  day,  the  claim 
shall  be  deemed  forever  barred  unless  on  the  return  day 
he  shall  consent  to  its  determination  by  the  surrogate,  in 
which  case  it  shall  be  so  determined.  The  word  claimant 
within  the  meaning  of  this  section  shall  be  deemed  to 
include  every  person  claiming  to  be  a  creditor  of  the 
estate  or  claiming  a  right  in  or  lien  upon  any  personal 
property  in  the  custody  of  the  petitioner  or  any  claim 
against  the  petitioner  by  reason  of  any  act  of  his  in  the 
administration  of  the  estate,  or  in  his  representative 
capacity.      (Co.  Civ.  Proc.  §  2718a). 

This  section  was  added  by  chapter  386  of  the  laws  of 
1904,  to  take  effect  September  1,  19,04. 


3G0  PRACTICE. 

ARTICLE  II. 

REFERENCE  OF  CLAIMS  A(;AINST  ESTATE  OF  DECEDENT. 

SECTION. 

1.  Wliat  (.la i ins  may  bo  referred. 

2.  Haw  reference  procured. 

3.  Proceedings  upon  the  reference. 

4.  Proceedings  upon  the  report. 

5.  Costs. 

Sec.    1.    Wliat  claims  may  be  referred. 

Tlio  exiHiitui'  or  adininistratoi',  at  an}'  time  after  the 
granting  of  liis  letters,  may  insert  a  notice  once  in  each 
week  for  six  months  in  such  newspaper  or  newspapers 
printed  in  the  county  as  the  surrogate  directs,  requiring 
all  persons  having  claims  against  the  deceased  to  ex- 
hibit the  same,  with  the  vouchers  therefor,  to  him,  at  a 
place  to  be  specified  in  the  notice,  at  or  before  a  day 
therein  named,  which  must  be  at  least  six  months  from 
the  day  of  the  first  publication  of  the  notice.  The  execu- 
tor or  administrator  may  require  satisfactory  vouchors 
in  support  of  any  claim  presented  and  the  affidavit  of 
the  claimant  that  the  claim  is  justly  due,  that  no  pay- 
ments have  been  made  thereon,  and  that  there  are  no 
offsets  against  the  same  to  the  knowledge  of  the  claim- 
ant. If  the  executor  or  administrator  doubts  the  justice 
of  any  such  claim,  he  may  enter  into  an  agTcement  in 
writing  with  the  clainmnt  to  refer  the  matter  in  contro- 
versy to  one  or  more  disinterested  persons,  to  be  ap- 
proved by  the  surrogate.  On  filing  such  agreement  and 
approval  in  the  office  of  the  clerk  of  the  supreme  court 
in  the  county  in  which  the  parties  or  either  of  them  re- 
side, an  order  shall  be  entered  by  the  clerk  referring  the 
matter  in  controversy  to  the  person  or  persons  so  se- 
lected. On  the  entry  of  such  order  the  proceeding  shall 
become  an  action  in  the  supreme  court.  The  same  pro- 
ceedings shall  be  had  in  all  respects,  the  referees  shall 
have  the  same  powers,  be  entitled  to  the  same  compensa- 
tion, and  snltject  to  the  same  control  as  if  the  reference 
had  been  nmde  in  an  action  in  which  such  court  might, 
by  law,  direct  a  reference.    In  determining  the  question 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   361 

of  costs,  the  referee  shall  be  governed  by  sections  1835 
and  183G  of  the  code.  Judgment  may  be  entered  on  the 
report  of  the  referee  and  such  judgment  shall  be  valid 
and  effectual  in  all  respects  as  if  the  same  had  been  ren- 
dered in  a  suit  commenced  by  the  ordinary  process,  and 
the  practice  on  appeal  therefrom  shall  be  the  same  as  in 
other  civil  actions.  If  a  suit  be  brought  on  a  claim 
which  is  not  presented  to  the  executor  or  administrator 
within  six  months  from  the  first  publication  of  such 
notice,  the  executor  or  administrator  shall  not  be  charge- 
able for  any  assets  or  moneys  that  he  may  have  paid  in 
satisfaction  of  any  lawful  claims,  or  of  any  legacies,  or 
in  nmkiug  distribution  to  the  next  of  kin  before  such 
suit  was  commenced.     (Co.  Civ.  Proc.  §  2718). 

Any  disputed  claim  against  the  estate  of  a  decedent 
whether  legal  or  equitable  {White  v.  Story,  43  Barb. 
121;  SMdmore  v.  Post,  32  Hun,  54)  ;  or  for  a  tort  of  the 
decedent  against  propertj^  {Brockett  v.  Bush,  18  Abb. 
Pr.  337)  may  be  referred  under  this  statute.  A  judg- 
ment recovered  against  an  intestate  in  his  lifetime  is  not 
a  claim  which  can  be  rejected  and  referred  under  sec- 
tion 2718.  [Matter  of  Browne,  35  Misc.  362;  Matter  of 
^Vait,  39  Misc.  74).  A  contingent  claim  may  be  referred 
as  well  as  one  where  the  liability  is  certain  and  fixed. 

[Comes  V.  ^V^Jhin,  79  N.  Y.  129).  But  to  warrant  a 
reference,  it  is  necessary  that  the  claim  should  have  ac- 
crued against  the  decedent  in  his  lifetime,  or  that  it 
should  be  one  which  would  have  accrued  against  him 
had  he  lived.  [Godding  v.  Porter,  17  Abb.  Pr.  374; 
Sands  v.  Craft,  10  Id.  216;  Tan  Slooten  v.  Dodge,  145 
N.  Y.  327).  An  administrator  cannot,  by  entering  into 
an  agreement  to  refer,  make  a  claim  referable  which  is 
in  its  nature  non-referable,  and  is  not  estopped  from  ap- 
pealing from  the  judgment.  {Tan  Slooten  v.  Dodge, 
supra).  If  the  executor  has  died,  leaving  assets,  the 
claim  of  his  co-executor  for  such  assets  is  not  referable 
under  this  statute.  (Sands  v.  Craft,  supra ;  Shorter  v. 
Macheg,  13  App.  Div.  20).  Only  such  claims  can  be  re- 
ferred as  will  authorize  a  judgment  for  money;  the 
referee    cannot    order    judgment    for    equitable    relief. 

[Myers  v.  Cronk,  45  Hun,  401;  affd.  on  other  grounds, 


3G2  PRACTICE. 

113  N/Y.  GOS).  The  statute  is  broad  enoii<;li  to  warrant 
a  reference  of  a  claim  of  a  surviving  partner  aj^ainst  the 
estate  of  his  deceased  partner,  accruing  out  of  the 
firm  business  (Francisco  V.  Fitch,  25  Barb.  130)  ;  or  the 
chiim  of  a  ward  against  her  guardian  growing  out  of 
wrongful  investments  of  the  ward's  money.  {Foioler  v. 
Hehhard,  40  App.  Div.  108).  Several  claims  of  differ- 
ent persons  cannot  be  referred  and  tried  in  one  action 
or  proceeding.     [Myers  v.  (Jronk,  supra.) 

Sec.    2.    How  reference  procured. 

An  agreement  for  a  reference  between  the  claimant 
and  executor  must  be  in  writing.  The  person  selected  as 
referee  must  be  approved  by  the  surrogate;  and  the 
agreement  and  the  approval  of  the  surrogate  must  be 
filed  in  the  office  of  the  county  clerk  of  the  county  in 
which  one  of  the  parties  resides,  and  the  order  must  be 
entered  in  that  county,  referring  the  matter  in  contro- 
versy to  the  person  selected  as  referee.  (Co.  Civ.  Proc. 
§  2718).  Under  the  revised  statutes  it  was  held  that 
such  a  reference  was  not  an  action  but  a  special  pro- 
ceeding. (Denise  v.  Denise,  110  N.  Y.  562).  But  sec- 
tion 2718,  added  to  the  code  in  the  year  1893,  provides 
that  on  the  entry  of  the  order  the  proceeding  shall  be- 
come an  action  in  the  supreme  court.  (Hiistis  v.  Ald- 
ridije,  144  N.  Y.  508).  The  entry  of  the  order  of  refer- 
ence is  deemed  to  be  the  commencement  of  the  action 
for  the  purpose  of  the  application  of  the  statute  of  limi- 
tations. (Sanford  v.  Sanford,  2  Hun,  94;  affd.,  62  N. 
Y.  553 ;  Hultslander  v.  Thompson,  5  Hun,  348 ;  Leahy  v. 
Campbell,  70  App.  Div.  127).  To  confer  jurisdiction  so 
as  to  make  a  judgment  valid,  every  step  required  by  stat- 
ute must  be  taken.  (Burnett  v.  Gould,  27  Hun,  366). 
There  must  be  an  agreement  in  writing;  the  person 
agreed  on  as  referee  must  be  approved  by  the  surrogate ; 
the  agreement  and  approval  must  be  filed  in  the  county 
clerk's  office ;  and  the  order  referring  the  claim  must  be 
entered  in  the  supreme  court.  (Bucklin  v.  Chapin,  53 
Barb.  488).  A  substantial  compliance  with  the  terms 
of  the  statute  is,  however,  sufficient  (Bucldin  v.  Chapin^ 
supra) ;  and  mere  irregiilarities  are  waived  by  proceed- 


ACTIONS  RELATING  TO  THE  ESTATE  OP  A  DECEDENT.  ZQS 

ing  to  trial  {Montgomcrjj  v.  Burgess,  92  Hun,  289)  ;  but 
the  objoctiou  that  the  cause  of  action  is  against  the 
executor  personally  and  not  against  the  estate  is  not 
thus  waived.  (Van  ^looten  v.  Dodge,  145  N.  Y.  327). 
One  executor  may  make  an  agreement  to  refer  for  him- 
self and  his  co-executor.  {Waite  v.  Yan  Demarh,  18 
N.  Y.  St.  Kep.  1).  The  agreement  to  refer  should  state 
clearly  the  claim  upon  which  it  is  based.  But  it  seems 
that  it  is  sufficient  if  the  transaction  out  of  which  the 
claim  arises  is  identified  and  its  general  character  indi- 
cated without  technical  formality,  and  the  amount  of  the 
claim  stated.  ( Titus  v.  Foole,  145  N.  Y.  414,  421) .  At 
one  time  it  was  suggested  that  the  agreement  should  also 
state  the  defense  and  that  it  took  the  place  of  the  decla- 
ration and  plea  {Woodin  V.  Bagley,  13  Wend.  453)  ;  but 
such  has  not  been  the  practice.  It  has  been  customary 
simply  to  state  in  the  agreement  that  the  executor 
doubted  the  justice  of  the  claim;  and  no  statement  of 
the  defense  has  been  usual,  or  is  required.  (Rutherfrjrd 
V.  Soap,  85  Hun,  119).  The  referee  cannot  be  selected 
by  the  surrogate  unless  the  parties  authorize  him  to  do. 
so ;  his  power  is  exhausted  by  the  approval  of  the  referee. 
{Tilney  v.  Clendenning,  1  Dem.  212).  It  has  been  held 
that  the  approval  of  the  surrogate  obtained  after  the 
proofs  before  the  referee  closed,  was  sufficient  to  give 
validity  to  the  judgment  entered  upon  the  report. 
{^Va^te  V.  Van  Demark,  18  N.  Y.  St.  Rep.  1).  That  case 
was  decided  on  the  authority  of  Bucklin  v.  Ghapin  (53 
Barb.  488 ) ,  which  it  followed  with  some  hesitation. 

The  order  entered  upon  the  agreement  is  the  usual 
order  of  course,  reciting  that  it  is  entered  upon  the  filing 
of  the  agreement  and  approval.  It  is  not  usually  en- 
ered  as  a  court  order;  but  the  fact  that  it  is  entitled  as 
a  special  term  order  does  not  invalidate  it.  (Waite  V. 
Vail  Demark,  supra).  It  was  held  at  an  early  date  that 
unless  such  agreement  to  refer  was  filed  and  the  order 
entered  as  required  by  the  statute,  the  court  had  no  jur- 
isdiction in  the  action.  {Comstock  v.  Olmstead,  6  How. 
Pr.  77).  But  the  later  case  of  Bucklin  v.  Chapiii  (53 
Barb.  488)  decided  that  the  filing  of  the  agreement  was 
sufficient  to  give  jurisdiction ;  and  that  the  order  might 


36J:  PRACTICE. 

be  entered  nunc  pro  tunc  after  tha  making  of  the  report. 
In  tliat  case,  however,  the  papers  had  been  filed  in  the 
county  clerk's  office,  tlie  hearing  had  been  had  before  the 
referee,  his  rej^ort  made,  judgment  entered  upon  it,  and 
an  appeal  taken  to  the  general  term;  and  the  court  held 
that  the  appearance  of  the  parties  before  the  referee 
after  their  consent  to  refer,  conferred  jurisdiction;  and 
that  it  was  a  waiver  of  the  right  to  object  that  the  order 
had  not  been  filed  or  entered.  BiwJdin  v.  Chapin  is 
cited  with  approval  in  Montgonierij  v.  Burgess  (92  Hun, 
289).  Although  the  proceedings  are  not  in  precisely  the 
form  required  by  the  statute,  it  is  not  thereby  changed 
into  an  arbitration,  unless  it  is  clear  that  such  was  the 
intention  of  the  parties.  {Hovey  V.  Hoveg,  46  llun,  71). 
Where  during  the  progress  of  the  trial,  it  appeared  that 
some  of  the  items  of  the  claim  presented  by  the  claimant 
were  not  referable  under  the  statute,  and  an  oral  agree- 
ment was  made  between  the  parties  to  the  effect  that  the 
referee  might  be  authorized  to  pass  upon  all  matters  ex- 
isting between  the  parties  and  appearing  before  it,  it 
was  held  that  the  proceeding  was  uot  thereby  changed 
into  an  arbitration.  (Hoveij  v.  Hovey,  supra).  Where, 
however,  the  agreement  between  the  parties  was  that 
they  would  submit  the  matters  in  controversy  to  three 
individuals  named  to  determine  and  award  upon  the 
same,  and  that  the  judgment  should  be  entered  upon 
such  award  and  determination,  it  was  held  that  the  pro- 
ceeding was  not  a  reference  under  the  statute,  but  an 
arbitration.     {Akely  v.  AlceJy,  IT  How.  Pr.  21). 

Sec.    3.    Proceedings  upon  the  reference. 

No  pleadings  are  necessary  in  these  cases.  {Mo wry 
V.  Peet,  88  N.  Y.  453).  Under  the  revised  statutes  it  was 
held  that  although  the  claim  was  an  account  against  a 
decedent,  the  provisions  of  section  531  of  the  code  (vol. 
I,  p.  351)  did  not  apply;  and  the  penalty  for  omitting 
to  serve  a  bill  of  items  prescribed  by  that  section  could 
not  be  imposed.  {Town send  v.  N.  Y.  Life  Ins.  Co.,  4 
Civ.  Proc.  Rep.  398).  It  was  held  in  Movry  v.  Peet  (13 
Wk.  Dig.  10)  that  the  court  in  such  proceedings  had  the 
power  to  order  a  bill  of  particulars.     That  case  was 


ACTIONS  EELATING  TO  THE  ESTATE  OP  A  DECEDENT.   3G5 

afterwards  reversed  by  the  court  of  appeals  (88  N.  Y. 
453)  but  without  passing  upon  that  point.  But  under 
the  provisions  of  section  2718  of  the  code,  whereby,  upon 
entry  of  the  order  of  reference,  the  proceeding  becomes 
an  action  in  the  sui^reme  court  it  would  seem  that  the 
court  has  all  the  power  in  these  respects  which  it  has  in 
an  action  begun  by  ordinary  process.  {Hustis  v.  Ald- 
ridge,  144  N.  Y.  508;  Loiuisbury  v.  Sherwood,  53  App. 
Div.  318).  But  the  referee  cannot  require  a  bill  of  par- 
ticulars. (Eldred  v.  Eames,  115  N.  Y.  401).  The  ques- 
tion submitted  to  the  referee  being  whether  the  claim  is 
a  just  claim  against  the  estate  of  the  deceased,  the 
referee  may  consider  and  pass  upon  any  defense,  legal 
or  equitable;  and  any  off-set  which  the  executors  may 
give  in  evidence  for  the  purpose  of  reducing  or  extin- 
guishing the  demand  of  the  claimant  {Mowry  v.  Feet, 
88  X.  Y.  453)  ;  and  the  defendant  may  rely  upon  the 
statute  of  limitations,  without  pleading  it.  {Converse 
v.  Miner,  21  Hun,  3G7,  372;  Simons  v.  Steele,  82  App. 
Div.  202).  The  executor  is  not  estopped  from  relying 
upon  the  statute  of  limitations,  by  delay  on  his  part  in 
objecting  to  an  account  {Bwcldin  v.  Cliapin,  1  Lans. 
443)  ;  nor  does  he  stop  the  running  of  the  six-months' 
statute  by  offering  to  submit  the  controversy  without 
action,  under  section  1279  of  the  code;  to  have  that 
effect,  the  offer  must  have  been  accepted,  and  the  sub- 
mission made.  {Comes  v.  Wilkin,  79  N.  Y.  129).  The 
plaintiff  may  give  any  pertinent  proof  to  sustain  his 
claim,  and  the  defendant  may  introduce  any  evidence 
which  goes  to  defeat  it.  {Eldred  V.  Eames,  115  N.  Y. 
401).  The  court  may,  after  the  order  of  reference  is 
entered,  order  other  persons  to  be  brought  in,  if  their 
presence  is  necessary  to  the  determination  of  the  contro- 
versy.    {Mowry  v.  Feet,  7  Abb.  N.  C.  195). 

The  hearing  before  the  referee  is  brought  on  in  the 
same  manner  and  upon  the  same  notice  as  in  an  action 
which  has  been  referred  to  hear  and  determine.  (Vol. 
II,  p.  432).  The  referee  shall  proceed  to  hear  and  de- 
termine the  matter,  and  make  his  report  thereon  to  the 
supreme  court.  The  same  proceedings  shall  be  had  in  all 
respects;  the  referee  shall  have  the  same  powers,  and  be 


3G0  PRACTICE. 

sulijoct  to  the  .same  control  and  entitled  to  the  same  com- 
pensation as  if  the  reference  had  been  in  an  action  in 
which  the  court  might  by  law  direct  a  reference.  (Co. 
Civ.  Proc.  §  2718),  Under  the  revised  statutes  the 
referee  in  these  proceedings  did  not  have  the  same  power 
as  a  referee  to  hear  and  determine  an  action  which  was 
pending  at  the  time  of  his  appointment,  but  only  such  as 
were  exj^ressly  conferred  by  the  statute,  or  Avere  fairly 
inferable  from  its  provisions.  {Eldred  v.  Eames,  115 
N.  Y.  401).  He  could  not  allow  the  plaintiff  to  with- 
draw a  i^art  of  his  claim,  or  to  amend  the  claim,  as  a 
referee  might  allow  an  amendment  of  the  complaint. 
(Id.).  He  could  ouly  try  the  claim  which  was  rejected 
by  the  executor,  and  had  no  power  to  vary  or  enlarge  it 
at  the  trial.  (Id.).  But  under  section  2718  of  the  code 
the  referee  may,  upon  the  trial,  allow  claimant  to  amend 
his  claim  by  increasing  the  amount  asked  for  (Loims- 
hury  V.  Sherivood,  53  App.  Div.  318 ;  Lee  v.  Lee,  85  Hun, 
588) ;  and  a  motion  for  amendment  may  be  made  at 
special  term  when  the  referee  refuses  to  allow  it  for 
want  of  power.     {Lee  v.  Lee,  supra). 

The  referee  has  power  to  take  an  account  if  it  is  neces- 
sary, and  strike  a  balance  and  direct  judgment  against 
the  defendant  for  the  amount  found  due  from  him 
{^Iddmore  v.  Post,  32  Hun,  54)  ;  but  he  cannot  order  an 
affirmative  judgment  for  tiie  executor  upon  a  counter- 
claim. {Moivry  v.  Peet,  88  N.  Y.  453;  Osborne  v.  Par- 
l^er,  66  App.  Div.  277).  The  executors  can  undoubtedly 
avail  themselves  of  their  set-off  or  counterclaim  to  the 
extent  necessary  to  extinguish  the  demand  of  the  claim- 
ant. In  the  Moicry  case,  the  court  did  not  consider  and 
declined  to  decide,  what  effect  their  so  doing  Avould 
Tiave  upon  an  action  afterwards  brought  by  them  for 
the  residue,  if  any,  of  their  claim,  or  whether  they 
could  divide  their  claim  by  setting  off  part  and 
bringing  an  action  for  the  residue.  The  report  of 
the  referee  should  be  made  in  the  usual  form  as  in  the 
case  of  a  reference  to  hear  and  determine  an  action. 
(Vol.  II,  p.  438).  Exceptions  should  be  filed  as  in 
other  actions.  (Vol.  II,  p.  442).  If  the  referee  named 
in  the  stipulation  refuses  to  serve  the  court  must  ap- 


ACTIONS  RELATING  TO  TPIE  ESTATE  OF  A  DECEDENT.      3G7 

point  a  new  referee  unless  the  stipuLation  expressly  pro- 
vides otherwise.     {Hustis  v.  AJdrklgc,  144  N.  Y.  508). 

Sec.    4.    Proceedings  upon  the  report. 

Judgment  may  be  entered  on  the  report  of  the  referee 
and  such  judgment  shall  be  valid  and  effectual  in  all 
respects  as  if  the  same  had  been  rendered  in  a  suit  com- 
menced by  the  ordinary  process.  (Co.  Civ.  Proc.  § 
2718) .  Section  2718  was  added  to  the  code  in  1893,  and 
entirely  changed  the  practice  in  entering  judgment  upon 
the  referee's  report.  Prior  to  1893,  it  was  necessary  to 
apply  to  the  court  for  a  conlirmation  of  the  report  and 
judgment  could  be  entered  only  by  special  order.  [Rad- 
ley  V.  Fisher,  24  How.  Pr.  404).  The  usual  practice  was 
for  the  defeated  party  to  move  on  a  case  and  excep- 
tions for  a  new  trial  at  the  time  of  the  hearing  of  the 
motion  for  the  confirmation  of  the  report,  and  rulings 
made  upon  the  admission  of  evidence  and  the  question 
whether  the  evidence  justified  the  findings  were  thus  re- 
viewed. If  the  hearing  was  upon  the  report  alone,  the 
only  questions  considered  were  the  regularity  of  the  pro- 
ceedings and  whether  the  conclusions  of  law  were  sus- 
tained by  the  findings  of  fact.  [Eighmie  v.  Strong,  49 
Hun,  16).  The  court  had,  however,  no  power  to  order 
judgment  against  the  report  of  the  referee.  The  report 
was  either  confirmed  or  set  aside,  and,  if  set  aside,  a  new 
trial  followed  either  before  the  same  referee  or  before 
another  referee  appointed  by  the  court.  {Coe  v.  Goe, 
37  Barb.  232). 

But  under  the  present  practice,  judgment  is  entered 
upon  the  report  as  in  an  ordinary  action,  and  no  order 
of  confirmation  is  necessary  {Jenldnson  v.  Harris,  27 
Misc.  714),  although  in  some  recent  cases  the  former 
practice  seems  to  have  been  unnecessarily  followed. 
{Lounshurg  v.  Shcriuood,  53  App.  Div.  318).  The  pro- 
ceeding becomes  an  action  in  the  supreme  court  and  the 
practice  laid  down  by  the  code  for  cases  in  that  court 
which  have  been  referred  by  stipulation  must  be  fol- 
lowed.    ( Hnstis  v.  A  Uridge,  144  N.  Y.  508 ) . 

The  practice  on  appeal  from  the  judgment  is  the  same 
as  in  other  civil  actions.      (Co.  Civ.  Proc.  §  2718).    The 


3G8  I'liACTICE. 

necessity  for  exceptions  to  tlie  referee's  report,  in  oi-der 
to  secure  a  review  upon  appeal,  is  the  same  as  where  an 
action  has  been  referred  to  a  referee  to  hear  and  de- 
termine; as  to  which,  see  the  discussion  of  that  subject 
in  volume  II. 

If  a  new  trial  is  granted,  the  special  term  may  ap- 
point a  new  referee,  without  the  consent  of  the  parties. 
{Mustcn  V.  Biidington,  18  Hun,  105;  lliifitis  v.  AldrUhjc, 
supra).  Judgment  upon  the  claim  referred,  does  not 
make  it  a  judgment  debt  as  against  the  heirs  {j^harpr  v. 
Freeman,  45  N.  Y.  802)  ;  but  the  judgment  is  conclusive 
in  the  surrogate's  court,  on  the  settlement  of  the  account 
of  the  executors.  {Matter  of  Gray,  42  Hun,  411;  affd., 
IIIN.  Y.  404). 

Sec.    5.    Costs. 

In  determining  the  question  of  costs  the  referee  shall 
be  governed  by  sections  1835  and  1836  of  the  code.  (Co. 
Civ.  Proc.  §  2718).  The  rules  which  govern  the  court  in 
allowing  costs  against  executors  and  administrators  are 
stated  in  volume  II,  pp.  550,  575. 

The  amendment  made  in  1895  to  section  1836  of  the 
code  destroyed  one  of  the  last  remaining  distinguishing 
features  of  the  reference  of  a  disi^uted  claim  against  an 
estate.  Prior  to  1895,  if  an  executor  or  administrator 
consented  to  refer,  he  was  liable  for  costs  only  in  case 
payment  of  the  claim  was  found  to  have  been  unreason- 
ably resisted  or  neglected.  But  now  a  consent  to  refer 
has  no  effect  upon  the  question  of  costs,  section  1833 
providing  that  he  shall  be  liable  for  costs  on  a  claim  pre- 
sented within  the  time  specified  in  the  notice,  if  it  ap- 
pears that  payment  was  unreasonably  resisted  or  ne- 
glected, or  unless  he  files  a  consent  that  the  surrogate 
lanj  hear  and  determine  the  claim  upon  the  settlement 
of  his  accounts.  The  reference,  therefore,  has  come  to 
be  to  nearly  all  intents  the  same  as  an  ordinary  refer- 
ence by  stipulation,  in  an  action.  The  legal  representa- 
tive nmy,  however,  prove  his  defense  without  pleading 
it;  and  it  is  held  in  Louiishiir]/  v.  Sherwood  (53  App. 
Div.    318)  ;    and    Osborne    v.    Parker    (66    App.    Div. 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      369 

277),  that  section  three  hundred  and  seventeen  of  the 
code  of  procedure  is  still  in  force,  and  that  the 
prevailing  party  may  recover  his  disbursements 
of  the  reference,  even  though  not  entitled  to  re- 
cover his  costs.  It  is  in  the  power  of  the  referee  to 
award  costs  {Fisher  v.  Bennett^  21  Misc.  178)  : 
and  his  decision  cannot  be  reviewed  at  special  term. 
{Jenl<inson  v.  Harris,  27  Misc.  714).  In  the  latter  case 
it  is  stated,  however,  that  where  the  referee  does  not  pass 
upon  the  question  of  costs,  an  application  to  the  court  is 
still  proper.  If  claimant  obtains  judgment,  defendant 
is  not  entitled  to  costs,  even  though  claimant  is  denied 
costs  {Hopkins  v.  Lott,  111  N.  Y.  577),  except  in  the 
case  where  the  claim  is  less  than  fifty  dollars,  and  has 
been  duly  presented  and  has  been  rejected.  {Lamphere 
V.  Lamphere,  54  App.  Div.  17).  The  court  has  power  in 
this  proceeding  to  grant  an  allowance  in  addition  to 
costs.     {Weeks  v.  Ooe^  76  App.  Div.  310). 


ARTICLE  III. 

ACTION  BY  CREDITOR  OF  DECEDENT  AGAINST  NEXT  OF  KIN, 

LEGATEE^  HEIR  OR  DEVISEE. 
SECTION. 

1.  When  the  action  lies. 

2.  Regulations    with    regard    to    action    against    next    of   kin   and 

legatees. 

3.  Regulations  with   regard  to   actions  against  devisees  and  heirs 

at  law. 

4.  Preference  of  debts. 

Sec.    1.   "When  the  action  lies. 

An  action  may  be  maintained,  as  prescribed  in  article 
2  of  title  3  of  chapter  XV  of  the  code,  against  the  sur- 
viving husband  or  wife  of  a  decedent,  and  the  next  of 
kin  of  an  intestate,  or  the  next  of  kin  or  legatees  of  a 
testator,  to  recover,  to  the  extent  of  the  assets  paid  or 
distributed  to  them,  for  a  debt  of  the  decedent,  upon 
which  an  action  might  have  been  maintained  against  the 
executor  or  administrator.  The  neglect  of  the  creditor 
to  present  his  claim  to  the  executor  or  administrator, 
24 


370  PRACTICE. 

witliiu  the  time  prescribed  by  law  for  that  purpose,  does 
not  impair  his  right  to  maintain  such  an  action.  (Co. 
Civ.  Proe.  §  1837). 

The  term,  "next  of  kin,"  as  used  in  this  article,  in- 
cludes all  those  entitled,  under  the  i)i'<Jvisions  of  law 
relating-  to  the  distribution  of  personal  property,  to 
share  in  the  unbecjueathed  assets  of  a  decedent,  after 
payment  of  debts  and  expenses,  other  than  a  surviving 
husband  or  Avife,     (Co.  Civ.  Proc.  §  1870). 

The  right  to  maintain  an  action  to  compel  one  who 
had  received  a  portion  of  the  assets  of  the  decedent,  to 
pay  them  to  the  creditors,  if  there  was  a  deficiency  from 
any  cause,  does  not  arise  by  statute.  { Lupton  v.  Lupton, 
2  Johns.  Ch.  613;  Colgan  v.  Dunne,  50  Hun,  443).  With- 
out the  statute,  legatees  who  had  been  paid  could  be 
compelled  to  refund  for  the  benefit  of  creditors,  whether 
the  deficiency  was  original,  or  caused  by  the  waste  of  the 
executor.  (Lupton  v.  Lupton,  supra).  But  although 
the  remed}'  was  not  given  by  the  statute,  it  must  be  pur- 
sued in  the  manner  and  subject  to  the  limitations  im- 
posed by  the  statute.  [Dodge  v.  Stevens,  94  N.  Y.  209)., 
The  right  of  the  creditors  of  a  decedent  to  recover  their 
claims  from  his  heirs  at  law  had  no  existence  at  common 
law,  but  is  derived  wholly  from  statute.  [Read  v.  Pat- 
terson, 134  X.  Y.  128;  Dcjjo  v.  Morss,  30  App.  Div.  56). 
The  legatees  or  next  of  kin  can  only  be  made  liable  now 
upon  the  contracts  of  the  decedent  or  for  his  debts  in  the 
cases  and  in  the  manner  which  the  statute  prescribes. 
{Selovcr  v.  Coc,  03  X.  Y.  438;  Brutes  v.  Hopper,  77  Uun, 
244).  But  where  the  widow  of  testator  is  administratrix 
(with  the  will  annexed)  of  his  will,  and  also  sole  legatee 
and  devisee,  an  action  is  properly  brought  against  her  in 
both  capacities,  and  it  need  not  be  shown  that  the  rem- 
edy against  her  as  administratrix  has  been  exhausted. 
[De  Crano  v.  Moore,  50  App.  Div.  361).  And  Avhere  the 
executors  sold  property  not  belonging  to  the  estate  and 
the  residuary  legatee  received  the  whole  avails  of  the 
sale,  an  action  for  money  had  and  received  was  held 
propei'ly  brought  against  her  without  first  suing  the 
executors.  [Mertens  v.  Roche,  39  App.  Div.  398).  Any 
kind  of  contractual  obligation  including  one  based  on  a 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      371 

fiduciary  relation  will  serve  as  a  basis  for  the  action. 
(De  Crano  v.  Moore,  supra).  An  executor  who  out  of  his 
own  means  pays  debts  of  testator  can  compel  payment 
of  his  claim  from  legatees  and  devisees,  and  a  person 
who  advances  to  an  executor  the  money  which  he  uses 
for  such  purpose  is  subrogated  to  his  rights.  And  where 
the  executor,  at  the  request  of  some  of  the  beneficiaries 
under  the  will,  pays  a  claim  against  the  estate  which  is 
barred  by  the  statute  of  limitations,  he  is  entitled  to 
enforce  payment  of  the  money  used  for  such  purpose 
from  such  beneficiaries.  (Hamlin  v.  ^mith,  72  App. 
Div.  601).  The  action,  although  now  regulated  by  the 
code,  is  of  equitable  cognizance  (De  Crano  v.  Moore,  50 
App.  Div.  365,  note)  ;  but  the  same  statute  of  limita- 
tions is  applied  which  would  be  applied  in  an  ordinary 
action  upon  the  debt.  ( Colgan  v.  Dunne,  50  Hun,  443 ; 
Adams  v.  Fassett,  149  N.  Y.  61).  The  provisions  of  the 
code  are  the  same  as  those  of  the  revised  statutes,  except 
that  the  words  "surviving  husband  or  wife"  have  been 
inserted.  It  was  said  in  Schermerhorn  v.  Barhydt  (9 
Paige,  28)  that  each  creditor  of  the  decedent  must  pro- 
ceed separately  against  the  heir  or  devisee  to  recover  a 
debt  due  from  the  decedent ;  but  it  would  seem  from  sub- 
sequent cases,  that  one  creditor  might  sue  in  behalf  of 
all  the  other  creditors.  {Stuart  v.  Kissam,  11  Barb. 
271;  Yan  Wezel  v.  Wyckof,  3  Sand.  Ch.  528).  If  the 
claim  has  been  presented  to  the  executors  and  rejected, 
and  six  months  have  elapsed  without  bringing  an  action 
to  enforce  it,  so  that  the  short  statute  of  limitations  has 
become  a  defense,  it  is  available  as  well  to  the  legatees 
or  next  of  kin  or  heirs  or  devisees  as  to  the  executors. 
(Selover  v.  Coe,  63  N.  Y.  438).  The  fact  that  a  creditor 
has  taken  the  note  of  the  executor  for  the  amount  of  his 
debt  is  not  a  defense,  unless  it  appears  that  the  note  was 
taken  in  payment.  (Glenn  v.  Burrows,  37  Hun,  602; 
Hamlin  v.  kmith,  72  App.  Div.  601).  The  fact  that 
there  has  been  no  judicial  settlement  of  the  adminis- 
trator's account  is  no  objection  to  the  maintenance  of  an 
action  against  the  next  of  kin;  an  accounting  can  be 
had  in  the  action.  (Miller  v.  Morton,  89  Hun,  574). 
To  maintain  the  action,  it  is  not  sufficient  merely  to 


372  PRACTICE. 

show  dofeiulant's  posscssiou  of  property  beloiniiiim-  to 
the  estate  Jind  that  the  estate  is  indebted  to  i)hiiiilil"f. 
(Bratcr  v.  Hopper,  77  Ilun,  244).  But  where  a  legatee 
has  received  assets  of  the  estate,  and  her  testator  was 
lialde  as  guarantor  of  a  mortgage,  a  judgment  for  a 
deficiency  is  properly  entered  against  her,  to  the  extent 
of  the  assets  received  by  her.  {CoUivr  v.  Miller,  02  Ilun, 
99;  attd.,  137  ]S\  Y.  332,  341).  If  the  action  was  brought 
originally  against  the  decedent,  it  cannot  after  his  death 
be  revived  against  the  persons  made  liable  by  section 
1837,  as  well  as  the  executors;  they  can  only  be  pro- 
ceeded against  in  a  subsequent  action.  {Green  v.  Mar- 
tine,  27  Hun,  240). 

This  article  (art.  2,  title  3,  chap.  XA'  of  the  code)  does 
not  affect  the  liability  of  an  heir  or  devisee,  for  a  debt 
of  a  testator,  where  the  will  expressly  charges  the  debt 
exclusively  upon  the  real  property  descended  or  devised, 
or  makes  it  payable  exclusively  by  the  heir  or  devisee,  or 
out  of  the  real  property  descended  or  devised,  before 
resorting  to  the  personal  property,  or  to  any  other  real 
property  descended  or  devised.     (Co.  Civ.  Proc.  §  1859). 

Where  a  person,  who  takes  real  property  of  a  decedent 
by  devise,  and  also  by  descent;  or  Avho  takes  personal 
property  as  next  of  kin,  and  also  as  legatee;  or  who  takes 
both  real  and  personal  property  in  either  capacity;  or 
who  is  executor  or  administrator,  and  also  takes  in 
either  of  the  before  mentioned  capacities;  would  be 
liable,  in  one  capacity,  for  a  demand  against  the  dece- 
dent, after  the  exhaustion  of  the  remedy  against  him 
in  another  capacity;  the  plaintift",  in  any  action  to 
charge  him,  which  can  be  maintained,  without  joining 
with  him  any  other  person,  except  a  person  whose  liabil- 
ity is  in  all  respects  the  same,  may  recover  any  sum,  for 
Avhich  he  is  liable,  although  the  remedy  against  him  in 
another  capacity  was  not  exhausted.  But  this  section 
does  not  increase  the  sum,  which  the  plaintiff  is  entitled 
to  recover  against  him,  in  the  cai)acity  in  which  he  is 
actually  liable;  nor  does  it  charge  a  defendant  individ- 
ually, who  is  liable  only  in  a  representative  capacity. 
(Co'.  Civ.  Proc.  §  I860).' 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.  6i6 

A  child,  born  after  the  makiug  of  a  will,  who  is  en- 
titled to  succeed  to  a  part  of  the  real  or  personal  prop- 
erty of  the  testator,  or  a  subscribing  witness  to  a  will, 
who  is  entitled  to  succeed  to  a  share  of  such  property, 
may  maintain  an  action  against  the  legatees  or  devisees, 
as  the  case  requires,  to  recover  his  share  of  the  property; 
and  he  is  subject  to  the  same  liabilities,  and  has  the 
same  rights,  and  is  entitled  to  the  same  remedies,  to 
compel  a  distribution  or  partition  of  the  property,  or  a 
contribution  from  other  persons  interested  in  the  estate, 
or  to  gain  possession  of  the  property,  as  any  other  per- 
son who  is  so  entitled  to  succeed.  (Co.  Civ.  Proc. 
§  1868). 

A  child  who  is  entitled  to  bring  an  action  in  a  case 
provided  in  this  section,  may  follow  the  land,  although 
it  has  been  sold  by  the  executor  under  a  power  of  the 
will.  The  child  in  such  case  takes  title  as  heir  at  law  of 
the  ancestor,  and  not  under  the  will,  {^mith  V.  Robert- 
son, 89  N.  Y.  555). 

Sec.    2.    Regulations    with    regard    to    action    against    next    of 
kin  and  legatees. 

Subdivision  1. — Who  are  Proper  Parties. 

An  action,  specified  in  section  1837  of  the  code,  must 
be  brought,  either  jointly  against  the  surviving  husband 
or  wife,  and  all  the  legatees  or  all  the  next  of  kin,  as  the 
case  may  be,  or  at  the  plaintiff's  election,  against  one  of 
them  only.  But  where  a  legacy  is  received  by  two  or 
more  persons  jointly,  they  are  deemed  one  legatee, 
within  the  meaning  of  each  provision  of  the  article,  re- 
lating to  legatees.  "(Co.  Civ.  Proc.  §  1838). 

The  action  must  be  brought  either  against  all  the  leg- 
atees and  next  of  kin  or  against  one  of  them  only ;  it  can- 
not be  brought  against  a  part,  and  less  than  all.  {Warn- 
haugh  v.  Gates,  11  Paige,  505;  affd.  How.  Cases,  247). 

Section  151  of  the  code  (vol.  I,  pp.  162,  414)  does  not 
apply  to  this  action.  One  of  the  next  of  kin  who  has 
sold  his  distributive  share,  is  liable  as  though  it  had 
actually  come  into  his  possession.     {Merchants'  Ins.  Co. 


374  ruACTicL. 

V.  Hinnutii,  34  IJarb.  410).  So  also  is  an  infant  whose 
share  has  been  paid  to  his  general  <;uardian.  (Id,).  The 
husband  of  one  of  the  next  of  kin  is  not  a  proper  party 
defendant  in  the  action.  (Id.).  Where  the  will  directs 
that  the  real  estate  should  be  converted  into  money,  and 
the  legacies  should  be  paid  out  of  it,  legatees  who  elected 
to  take  real  estate  instead  of  the  proceeds  of  the  sale  of 
it,  are  liable  as  legatees  or  devisees  under  the  code. 
Armstrong  v.  McKeUey,  39  Hun,  213;  affd.,  104  N.  Y. 
179). 

Where  some  of  the  legatees  are  preferred  to  others, 
an  action  may  be  maintained  as  prescribed  in  sections 
1S37  to  1841,  inclusive,  of  the  code,  against  one  or  all  of 
those  who  are  equally  preferred  or  equally  deferred,  as 
if  the  legatees  of  that  class  were  all  the  legatees.  (Co. 
Civ.  Proc.  §  1842 ) .  This  section  is  new  and  was  passed 
to  provide  for  omissions  in  the  revised  statutes.  The 
heirs  or  devisees  cannot  be  joined  in  the  action  against 
the  legatees  or  next  of  kin.  Those  who  take  the  real 
estate  cannot  be  made  liable  unless  it  appears  that  there 
is  not  only  a  deficiency  of  assets  in  the  hands  of  the 
executors,  but  also  that  there  is  no  personal  property 
from  which  the  debt  of  the  decedent  can  be  collected. 
[Wamhaiigh  v.  Gates,  11  Paige,  505;  Gere  v.  Clarke,  6 
Hill,  350;  Read  v.  Patterson,  134  N.  Y.  128). 

Subdivision  2. — Pleadings  and  Proceedings. 

The  action  is  to  be  brought  in  the  same  manner  as  any 
other  action.  It  is  regarded  as  brought  on  the  debt  of 
the  decedent.  The  statute  of  limitations  applies  pre- 
cisely as  though  it  were  brought  against  him,  {Colgan 
V.  Dunne,  50  Hun,  443;  Adams  v.  Fassett,  149  N.  Y.  61). 
The  complaint  should  allege  everything  necessary  to 
show  a  cause  of  action  against  the  decedent,  his  death, 
and  the  appointment  of  personal  representatives;  that 
a  portion  of  the  assets  have  been  paid  to  the  defendants, 
either  as  legatees  of  next  of  kin ;  and,  if  the  action  is 
against  legatees,  the  other  facts  required  by  section  1841 
(which  is  quoted  below)  should  also  be  alleged.    If  part 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      375 

of  the  debt  has  been  collected  from  the  personal  repre- 
sentatives or  from  other  legatees  or  next  of  kin,  or  a 
surviving  husband  or  wife  of  the  decedent,  that  fact 
should  be  alleged,  and  the  amount  collected  should  be 
stated.  (Co.  Civ.  Proc.  §  1850 ;Siegel  v.  Cohen,  23  Misc. 
365).  The  legatees  are  not  sureties  for  each  other,  and 
each  one  is  liable  only  for  his  OAvn  portion  of  the  debt 
(Wilkes  v.  Harper,  1  N.  Y.  586)  ;  and  his  liability  is  lim- 
ited to  the  assets  received  by  him  from  the  estate.  (Hoiu- 
ell  V.  Wallace,  37  App.  Div.  323).  The  defendant's 
pleadings  are  governed  by  the  same  rules  as  in  all  other 
cases.  There  are  no  statutory  provisions  with  regard  to 
them.  If  the  defendant  is  liable  for  debts  of  a  class  pre- 
ferred to  that  of  the  plaintiff,  that  fact  should  be  set  up. 
The  defendant  cannot  set  up  as  a  counterclaim  a  claim 
existing  in  favor  of  the  testator  against  the  plaintiff, 
unless  it  appears  that  there  are  some  special  circum- 
stances or  peculiar  equities  existing  to  justify  it;  as  that 
the  plaintiff  is  insolvent,  or  the  claim  against  him  is 
barred  by  the  statute  of  limitations.  (Armstrong  V.  Mc- 
Kelcey,  39  Hun,  313;  affd.,  104  N.  Y.  179).  If  default 
is  made  in  appearing  or  answering,  the  plaintiff  can 
only  take  judgment  upon  application  to  the  court.  The 
action  is  not  one  iii  which  trial  by  jury  is  a  matter  of 
right.  (Howell  v.  Wallace,  supra).  It  is  to  be  put 
upon  a  calendar  and  brought  to  trial  in  the  same  man- 
ner as  other  actions  of  that  kind. 

If  the  action  is  brought  against  a  legatee,  or  against 
all  the  legatees,  the  plaintiff  must  show,  either : 

1.  That  no  assets  were  delivered  by  the  executor  or 
administrator  of  the  decedent,  to  the  surviving  husband 
or  wife,  or  next  of  kin ;  or 

2.  That  the  value  of  assets,  so  delivered,  has  been  re- 
covered by  some  other  creditor ;  or 

3.  That  those  assets,  after  payment  of  the  expenses 
of  administration  and  preferred  demands,  are  not  suf- 
ficient to  satisfy  the  demand  of  the  plaintiff;  in  which 
case,  he  can  recover  on\j  for  the  deficiency.  (Co.  Civ. 
Proc.  §  1841). 


37G  PllACTICE. 

A\'liere  llic  aelioii  is  bioujihl  aj^aiiisl  a  preferred  lega- 
tee or  a  class  of  preferred  legatees,  the  plaintiff  must 
show  in  ad<lition  to  the  matters  with  resi)e('t  to  the  next 
of  kin  required  by  the  provisions  of  the  section  last 
cited,  the  same  matters  with  respect  to  each  legatee  or 
class  of  legjitees  to  whom  the  defen<lant  or  defendants 
are  preferred.     (Co.  Civ.  Proc.  §  1842). 

fc^UDDivisiON  3. — Judgement. 

The  rules  for  entering  judgment  are  found  in  vol.  II, 
p.  G80,  ct  seq. 

Where  a  joint  action  is  brought,  as  prescribed  in  sec- 
tion 1838,  the  whole  sum,  Avhich  the  plaintiff  is  entitled 
to  recover,  must  be  apportioned  among  the  defendants, 
in  proportion  to  the  legacy  or  distributive  share,  as  the 
case  may  be,  received  by  each  of  them;  and  the  final  judg- 
ment must  award,  against  each  defendant  separately, 
the  proportionate  sum  thus  ascertained.  The  costs  of 
the  action,  if  the  plaintiff  is  entitled  to  costs,  must  be 
apportioned  in  like  manner;  except  that  the  expenses  of 
serving  the  summons  upon  each  defendant  must  be 
taxed  against  him  only;  and  one  sheriff's  fee,  for  return- 
ing an  execution,  may  be  taxed  against  each  defendant, 
against  whom  any  sum  is  awarded.  (Co.  Civ.  Proc. 
§1839). 

Where  an  action  is  brought  against  the  surviving  hus- 
band or  wife  only,  or  against  one  only  of  the  next  of  kin, 
or  legatees,  the  sum,  which  the  plaintiff  is  entitled  to 
recover,  cannot  exceed  the  sum  which  he  would  have 
been  entitled  to  recover  from  the  same  defendant,  in  an 
action  brought,  as  prescribed  in  section  1839  of  the  code. 
(Co.  Civ.  Proc.  §  1840). 

The  plaintiff  is  entitled  to^  costs,  as  of  course,  upon  a 
recovery.  (Vol.  II,  p.  559).  The  manner  in  which  costs 
are  apportioned  is  prescribed  in  section  1839  (supra). 
If  there  is  onh'  one  defendant,  he  is  liable  for  all  the 
costs  of  the  action,  and  they  are  not  to  be  apportioned  at 
all.     (Fiiil-  v.  Birrj,  50  Ilun,  211). 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   377 

Sec.    3.    Regulations    w^ith    regard    to    actions    against    devisees 
and  lieirs  at  law. 

Subdivision  1. — ^^'IIO  Should  p.e  Pauties. 

The  heirs  of  an  intestate,  and  the  heirs  and  devisees 
of  a  testator,  are  respectively  liable  for  the  debts  of  the 
decedent,  arising  by  simple  contract,  or  by  specialty,  to 
the  extent  of  the  estate,  interest,  and  right  in  the  real 
property,  which  descended  to  them  from,  or  was  effect- 
ually devised  to  them  by,  the  decedent.  (Co.  Civ.  Proc. 
§1843). 

The  liability  of  the  defendant  in  these  actions  is  only 
to  the  extent  of  his  interest  as  devisee,  and  it  is  not  a 
charge  on  the  land  {Fink  v.  Birr/,  50  Ilun,  211)  ;  l)ut  it 
is  made  a  lien  upon  the  land  by  the  judgment,  if  it  has 
not  been  aliened  by  the  heir  at  law  or  devisee.  (Co.  Civ. 
Proc.  §  1852).  During  three  years,  however,  after 
the  death  of  decedent,  creditors  have  a  statutory  lien 
running  with  the  land.  {Rogers  v.  Patterson^  79  Hun, 
483;  affd.  on  op.  below,  150  N.  Y.  560).  The  liability 
only  extends  to  real  property  which  has  been  received 
from  the  decedent.  The  heirs  are  not  liable  for  insur- 
ance money  which  they  have  received  for  property  in- 
herited by  them  which  was  destroyed  by  fire.  {Herkimer 
V.  Rice^  27  N.  Y.  163).  The  liability  of  a  devisee  exists 
although  the  legal  title  is  not  in  him,  if  he  has  the  entire 
equitable  interest  and  right  to  enforce  the  conveyance 
of  the  legal  title.  {Armstrong  v.  McKelvey,  104  N.  Y^ 
179).  If  an  heir  or  devisee  aliens  the  property,  he  is 
personally  liable  for  the  debt,  to  the  amount  of  the  value 
of  the  property.  (Co.  Civ.  Proc.  §  1854).  If  he  dies 
after  the  alienation,  his  personal  representatives  are 
liable  to  the  same  extent  {Traiid  v.  Magnes,  49  N.  Y''. 
Super.  Ct.  Rep.  309 )  ;  but  upon  his  death,  his  heir  at  law 
is  not  liable  for  the  debts  of  the  original  testator. 
{Fink  V.  Birg,  50  Hun,  211).  The  remedy  is  not  avail- 
able against  the  heir  at  law  of  a  devisee  or  the  devisee 
of  an  heir  at  law!  {Rogers  v.  Patterson,  supra).  An 
heir  at  law  or  devisee  is  not  liable  for  rents  or  profits 
before   judgment   entered   in   an   action,    although   the 


378  PRACTICE. 

estate  of  the  decedent  was  insolvent.  [Clift  v.  Moses, 
U  llun,  312;  arid.,  116  N.  Y.  144).  A  judgment  against 
an  executor  is  not  evidence  against  the  heir  or  devisee 
(Dodge  v.  Thompson,  13  Wk.  Dig.  104;  Armstrong  v. 
McKclvey,  39  Hun,  213;  affd.,  104  N.  Y.  179;  Burnham 
V.  Burnham,  46  App.  Div.  513;  affd.  on  op.  below,  165 
N.  Y.  659)  ;  but  if  a  judgment  has  been  recovered 
against  the  personal  representatives,  the  creditor  can 
not  in  an  action  against  the  heir  or  devisee  recover  a 
greater  amount  than  the  judgment  against  the  executor. 
(Rockwell  V.  Geery,  4  Hun,  600).  The  liability  only 
exists  for  actual  debt  resting  on  contract;  and  the 
amount  of  which  is  fixed  or  is  ascertained;  if  a  mort- 
gage made  by  the  decedent  has  been  foreclosed,  the  heir 
or  devisee  is  only  liable  after  judgment  for  deficiency 
has  been  entered,  and  for  the  amount  of  such  judgment. 
(Lockwood  V.  Faiccett,  17  Hun,  146).  At  common  law 
the  heir  was  not  chargeable  with  the  simple  contract 
debts  of  his  ancestor.  For  an  account  of  the  legislation 
creating  such  liability,  see  lluuselt  v.  Fattersoti  (124 
N.  Y.  349 ) .  Devisees  of  land  in  another  state  will  not 
be  held  personally  liable  here  for  testator's  debts,  with- 
out proof  that  the  law  of  such  other  states  establishes 
such  liability.      (Dei/o  v.  Morss,  30  App.  Div.  56). 

An  action  against  heirs  or  devisees,  brought  as  pre- 
scribed in  section  1843,  1844  and  1845,  must  be  brought 
jointly  against  all  the  heirs,  to  whom  any  real  property 
descended  from  the  decedent,  or  jointly  against  all  the 
devisees,  as  the  case  may  be.      (Co.  Civ.  Proc.  §  1846). 

Usually  the  heirs  and  devisees  cannot  be  joined  with 
the  executor  in  an  action  to  recover  the  debt  of  the  de- 
cedent (Greene  v.  Martine,  27  Hun,  246) ;  but  that  rule 
does  not  apply  w^here  a  creditor  has  established  his 
demand  before  the  surrogate  and  it  appears  that  the 
personal  estate  of  the  decedent  has  been  concealed  or 
wasted.  (Jjittell  v.  ^ayre,  7  Hun,  485).  An  action 
cannot  be  maintained  at  the  same  time  against  the  next 
of  kin  and  legatees,  and  the  heirs  and  devisees.  (Art. 
Ill,  section  2,  subd.  1,  supra). 


actions  relating  to  the  estate  of  a  decedent.    379 

Subdivision  2. — Conditions  Precedent  to  the  Action. 

An  action,  to  enforce  the  liability  declared  in  section 
1843,  cannot  be  maintained,  except  in  one  of  the  follow- 
ing cases :     . 

1.  Where  three  years  have  elapsed  since  the  death  of 
the  decedent,  and  no  letters  testamentary,  or  letters  of 
administration,  upon  his  estate,  have  been  granted 
within  the  state. 

2.  Where  three  years  have  elapsed,  since  letters  testa- 
mentary, or  letters  of  administration,  upon  his  estate, 
were  granted,  within  the  state.     (Co.  Civ.  Proc.  §  1844). 

If  it  appears  that  three  j^ears  have  not  elapsed  as  re- 
quired by  this  section,  the  complaint  must  be  dismissed. 
{Selover  v.  Cog,  63  N.  Y.  438).  But  where  the  three 
years  have  elapsed,  a  subsequent  grant  of  letters  will 
not  destroy  the  right  of  action.  {Adams  V.  Fassett, 
149  N.  Y.  61). 

Where  it  appears  that,  at  the  time  of  the  commence- 
ment of  such  an  action,  a  petition,  seasonably  presented, 
as  prescribed  by  law,  praying  for  a  decree  to  dispose  of 
real  property  of  the  decedent,  for  the  payment  of  his 
debts,  Avas  pending  in  a  surrogate's  court,  having  juris- 
diction, the  proceedings  in  the  action,  subsequent  to  the 
complaint,  must  be  stayed  by  the  court,  until  the  peti- 
tion is  disposed  of,  unless  the  plaintiff  elects  to  dis- 
continue. If  a  decree  to  dispose  of  real  property,  pur- 
suant to  the  prayer  of  the  petition,  is  gTanted,  the  action 
must  be  dismissed,  unless  the  plaintiff  has  alleged  in 
his  complaint,  or  alleges  in  a  supplemental  complaint, 
that  real  property,  other  than  that  included  in  the  de- 
cree, descended  or  was  devised  to  the  defendants.  If 
the  plaintiff  elects  to  proceed  under  such  an  allegation, 
he  is  entitled  to  a  preference  in  payment,  out  of  the  real 
property,  with  respect  to  which  the  allegation  is  made; 
but  he  cannot  share,  as  a  creditor,  in  the  distribution 
of  the  money,  arising  from  the  disposal  of  the  real 
property,  described  in  the  decree;  and  the  judgment  in 
the  action  does  not  charge,  or  in  any  way  affect,  that 
property.      (Co.  Civ.  Proc.  §  1845). 


380  ruACTiCE. 

The  right  to  apply  to  the  surrogate's  court  to  sell 
property  for  the  payment  of  the  debts  under  section 
2750  of  the  code,  continues  for  three  years  from  the 
time  when  letters  upon  the  estate  are  first  gi'anted 
\vithin  the  state  and  it  cannot  be  exorcised  after  that 
time.  (Hamilton  v.  Smith,  110  N.  Y.  159;  Kingftldnd 
y.  ^f array,  13S  N.  Y.  170).  During  such  three  years 
creditors  haye  a  statutory  lien  upon  the  real  property. 
[Roycrs  v.  Patterson,  79  Hun,  483;  afOd.  on, op.  belo\v, 
150  X.  Y.  560). 

Subdivision  3. — Pleadings  and  Proceedings. 

The  action  is  to  be  commenced  and  prosecuted  in  the 
usual  way.  The  complaint  and  notice  of  the  pendency 
of  the  action  should  be  filed.  (Vol.  I,  p.  237,  ct  seq.; 
Co.  Civ.  Proc.  §§  1853,  1854).  The  complaint  should 
state  a  cause  of  action  against  the  decedent,  his  death 
and  the  appointment  of  his  personal  representatives; 
and  that  the  assets  are  exhausted  and  are  not  enough 
to  pay,  or  that  the  plaintiff  has  been  unable  ^yith  due 
diligence  to  collect  his  debt  by  proceedings  in  the 
proper  court.  (Co.  Civ.  Proc.  §  1848).  The  evidence 
of  these  facts  need  not  be  stated.  [Hauselt  V.  Fine,  18 
Abb.  N.  C.  142;  s.  c,  3  N.  Y.  St.  Rep.  191).  If  the 
action  is  against  devisees,  the  complaint  must  allege  the 
facts  required  by  section  1849,  which  is  set  forth  below. 

Where  the  assets,  applicable  to  the  plaintiff's  debt, 
were  sufficient  to  pay  a  part  thereof,  or  a  part  thereof 
has  been  collected  from  the  executor,  or  administrator, 
or  from  the  surviving  husband  or  wife,  next  of  kin,  or 
legatees,  the  plaintiff  can  recover  only  for  the  residue, 
remaining  unpaid  or  uncollected;  and  if  the  action  is 
against  devisees,  he  can  recover  only  for  the  residue, 
which  the  real  estate  descended,  or  the  amount  of  his 
recovery  against  the  heirs,  is  insufficient  to  discharge. 
(Co.  Civ.  Proc.  §  1850). 

If  the  action  is  within  this  section,  the  facts  required 
thereby  should  be  stated,  and  also  the  amount  which  has 
already  been  recovered.  The  complaint  must  describe, 
with  common  certainty,  the  real  property,  descended  or 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   381 

devised  to  the  defendant,  and  must  specify  its  value. 
(Co.  Civ.  Proc.  §  1851).  If  the  plaintiff  is  unable  to 
describe  the  lands  he  is  entitled  to  an  examination  of 
the  party  to  enable  him  to  frame  his  complaint.  {Par- 
sons V.  Bmcnc,  7  Paige,  351).  There  are  no  special 
statutory  rules  with  regard  to  the  answer  of  the  defend- 
ant. If  there  are  claims  which  are  entitled  to  prefer- 
ence over  those  of  the  plaintiff,  and  for  which  he  might 
be  liable,  or  if  he  has  paid  his  proportion  of  the  debts 
of  the  decedent,  that  fact  should  be  stated  in  the  answer. 
Although  a  defect  of  parties  defendant  may  be  waived, 
the  liability  of  those  made  defendants  is  not  increased 
thereby.  {Eaiiselt  v.  Patterson,  121  N.  Y.  319).  The 
defense  that  the  action  is  brought  within  three  years 
after  the  grant  of  letters  is  not  waived  by  failure  to 
plead  it.  (Seloverv.  Coc,  63  N.  Y.  138).  In  an  action 
against  devisees,  a  counterclaim  in  favor  of  only  one  of 
them  cannot  be  interposed.  {Mortimer  v.  Chambers, 
63  Hun,  335).  Judgment  upon  default  can  only  be 
taken  on  application  to  the  court. 

The  action  although  now  regulated  by  the  code  is  of 
equitable  cognizance.  {De  Crano  V.  Moore,  50  App. 
Div.  365,  note;  Hoivell  V.  ^Yallace,  37  i^pp.  Div.  323). 

Where  the  action  is  brought  against  heirs,  the  plain- 
tiff must  show,  either : 

1.  That  the  decedent's  assets,  if  any,  within  the  state, 
were  not  sufficient  to  pa^^  the  plaintiff's  debt,  in  addition 
to  the  expenses  of  administration,  and  debts  of  a  prior 
class;  or 

2.  That  the  plaintiff  has  been  unable,  or  will  be  un- 
able, with  due  diligence,  to  collect  his  debt,  by  proceed- 
ings in  the  proper  surrogate's  court,  and  by  action 
against  the  executor  or  administrator,  and  against  the 
surviving  husband  or  wife,  legatees,  and  next  of  kin. 

The  executor's  or  administrator's  account,  as  ren- 
dered to,  and  settled  by,  the  surrogate,  may  be  used  as 
presumptive  evidence  of  any  of  the  facts,  required  to  be 
shown  by  this  section.      ( Co.  Civ.  Proc.  §  1818 ) . 

Where  the  action  is  brought  against  devisees,  the 
plaintiff  must  show,  in  addition  to  the  matters  specified 
in  section  1818,  either  that  the  real  property  of  the  de- 


382  PRACTICE. 

cedent,  which  descended  to  his  heirs,  was  not  suflficient 
to  pay  the  plaintiff's  debt,  or  that  the  plaintiff  has  been 
unable,  or  will  be  unable,  with  due  diligence,  to  collect 
his  debt  by  an  action  against  the  heirs.  (Co.  Civ.  Proc. 
§1849). 

Although  the  debt  accrued  before  the  code  went  into 
effect,  it  is  sufficient  for  plaintiff  to  make  the  i^roof 
required  by  section  1848 ;  he  is  not  required  to  make  the 
case  required  by  the  revised  statutes.  {Read  V.  Fatter- 
son,  134  N.  Y.  128;  overruling  Reed  v.  Lozier,  48  Hun, 
50). 

Section  1848,  above  cited,  does  not  require  that  it 
should  appear  that  proceedings  have  been  had  in  all 
cases  to  collect  the  debt  of  the  personal  representatives, 
or  of  the  next  of  kin  or  legatees.  The  inability  to  col- 
lect may  be  made  to  appear  in  any  other  way.  The  fact 
that  the  administrator  was  a  non-resident,  did  not,  be- 
fore the  code,  excuse  a  failure  to  take  proceedings  be- 
fore the  surrogate  to  compel  the  payment  by  him. 
{Mersereau  v.  Ryerss,  3  N.  Y.  261).  Where  there  is  a 
sufficiency  of  personal  assets  to  pay  all  debts,  and  they 
have  been  misappropriated  by  the  administrator,  the 
creditor  must  exhaust  the  personal  liability  of  the  ad- 
ministrator and  his  sureties,  before  he  can  maintain  an 
action  against  the  heirs.  {Moyer  v.  Moyer,  17  Misc. 
648). 

An  action  against  heirs  or  devisees,  brought  as  pre- 
scribed in  this  article  (art.  2,  title  3,  chap.  XV  of  the 
code),  is  not  delaj^ed,  nor  is  the  remedy  of  the  plaintiff 
suspended,  by  reason  of  infancy  of  any  of  the  parties; 
except  that  an  execution  shall  not  be  issued  against  an 
infant  heir  or  devisee,  until  the  expiration  of  one  year 
after  final  judgment  is  rendered,  and  the  judgment-roll 
filed.      (Co.  Civ.  Proc.  §  1858). 

Section  1844  of  the  code  contains  a  statutory  pro- 
hibition against  bringing  the  action  for  a  period  of  three 
years  after  the  death  of  the  debtor,  and  this  period  must 
be  added  to  the  statute  of  limitation  of  six  years,  thu? 
giving  the  creditor  nine  years  in  which  to  bring  his 
action  upon  an  ordinary  contract.  {Adams  v.  Fassett, 
149  N.  Y.  61). 


actions  relating  to  the  estate  of  a  decedent.    383 

Subdivision  4. — Judgment. 

Judgment  shall  be  entered  and  docketed  in  the  same 
manner  as  judgments  in  other  actions.  A  separate  judg- 
ment must  be  entered  against  each  defendant  for  his 
share.     As  to  costs,  see  vol.  II,  p.  559. 

In  such  an  action,  the  sum,  which  the  plaintiff  is  en- 
titled to  recover,  for  damages  and  costs,  must  be  appor- 
tioned among  all  the  defendants,  in  proportion  to  the 
value  of  the  real  property  descended  to  each  heir,  or  de- 
vised to  each  devisee,  as  the  case  may  be,  as  prescribed 
in  section  1839  of  the  code,  for  a  similar  apportionment 
among  legatees  or  next  of  kin,  in  proportion  to  the 
assets  received  by  them.  The  final  judgment  must,  in 
like  manner,  award  against  each  defendant  the  propor- 
tionate sum,  with  which  he  is  chargeable.  (Co.  Civ. 
Proc.  §  1847). 

If  it  appears  that  any  of  the  real  propertj^,  which 
descended  or  was  devised  to  a  defendant,  had  not  been 
aliened  by  him  at  the  time  of  the  commencement  of  the 
action,  the  final  judgment  must  direct,  that  the  debt  of 
the  plaintiff,  or  the  proportion  thereof  which  he  is  en- 
titled to  recover  against  that  defendant,  be  collected  out 
of  that  real  property.  Such  a  judgment  is  preferred,  as 
a  lien  upon  that  property,  to  a  judgment  obtained 
against  the  defendant,  for  his  individual  debt  or  de- 
mand.     (Co.  Civ.  Proc.  §  1852). 

The  judgment  is  not  a  lien  on  land  which  had  been 
aliened  by  the  devisee  or  heir  at  law  to  a  purchaser  in 
good  faith  before  the  filing  of  the  notice  of  pendency 
of  action  or  before  the  entry  of  final  judgment  if  no 
lis  pendens  was  filed.  {Smith  V.  Soper,  32  Hun,  46). 
But  such  judgment  has  a  preference  as  a  lien  on  the 
estate  descended  or  devised  over  any  judgment  against 
the  heir  or  devisee  for  his  own  personal  debt.  {Morris 
V.  Mowatt,  2  Paige,  586). 

But  a  judgment,  rendered  as  prescribed  in  section 
1852,  does  not  bind,  and  the  execution  thereupon  cannot 
in  any  way  affect,  the  title  of  a  purchaser,  in  good  faith 
and  for  value,  acquired  before  a  notice  of  the  pendency 
of  the  action  is  filed,  or  final  judgment  is  entered,  and 
the  judgment-roll  filed.      (Co.  Civ.  Proc.  §  1853). 


384  PRACTICE. 

This  sectiou  accords  with  the  construction  given  to 
the  corresponding  section  of  the  revised  statutes  in 
llijdc  V.  Tanner  (1  Barb.  75).  A  conveyance  for  a 
valuable  consideration  is  presumed  to  hjive  been  made 
on  the  consideration  expressed  in  it,  and  in  good  faith. 
(Wanihaugh  v.  Gates,  11  Paige,  505).  A  mortgagee 
is  deemed  a  purchaser  under  this  sectiou.  {Cunning- 
ham v.  Parler,  146  N.  Y.  29;  reversing  74  Hun,  273). 

Sec.    4.    Preference  of  debts. 

Where  the  surviving  husband  or  wife,  next  of  kin, 
legatees,  heirs,  or  devisees,  are  liable  for  demands 
against  the  decedent,  as  prescribed  in  this  article  (art.  2, 
title  3,  chap.  XV  of  the  code),  they  must  give  preference 
in  the  payment  thereof,  and  they  are  so  liable  therefor, 
in  the  order  prescribed  by  law,  for  the  payment  of  debts 
by  an  executor  or  administrator.  Preference  of  pay- 
ment cannot  be  given  to  a  demand,  over  another  of  the 
same  class,  except  where  a  similar  preference  by  an 
executor  or  administrator  is  allowed  by  law.  The  com- 
mencement of  an  action,  under  any  provision  of  said 
article,  does  not  entitle  the  plaintiif's  demand  to  prefer- 
ence over  another  of  the  same  class,  except  as  otherwise 
specialh^  prescribed  by  law.     (Co.  Civ.  Proc.  §  1855). 

Where  it  appears,  in  an  action  brought  as  prescribed 
in  said  article,  that  there  are  unsatisfied  demands 
against  the  decedent's  estate,  of  a  class  prior  to  that  of 
the  plaintiff's  demand,  the  defendant  is  entitled  to  judg- 
ment, if  the  value  of  the  proi)erty,  which  was  received, 
devised,  or  inherited,  as  the  case  may  be,  by  the  class  to 
which  he  l)elongs,  does  not  exceed  the  amount  of  the 
valid  demands  of  a  prior  class.  It  it  exceeds  the  amount 
of  those  demands,  the  judgment  against  the  defendant 
cannot  exceed  such  a  proportion  of  the  plaintiff's  de- 
mand, as  the  total  amount  of  the  valid  demands  of  his 
class  bears  to  the  excess.      ( Co.  Civ.  Proc.  §  1856 ) . 

Where  a  defendant,  or  a  person  belonging  to  his  class, 
has  paid  a  demand  against  the  decedent's  estate,  of  a 
class  prior  to  that  of  the  plaintiff's  demand,  or  has  paid 
a  demand  of  the  same  class,  the  amount  of  the  demand 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   385 

SO  paid  must  be  estimated,  in  ascertaining  the  amount 
to  be  recovered,  as  if  it  was  outstanding  and  unpaid. 
(Co.  Civ.  Proc.  §  1857). 


ARTICLE  IV. 

ACTION    TO   ESTABLISH   A    WILL. 
SECTION. 

1.  When  such  an  action  may  be  brought. 

2.  Who  are  proper  parties. 

3.  Pleadings  and  proceedings. 

4.  Judgment. 

Sec.    1.    Wlien  such  an  action  may  be  brought. 

An  action  to  procure  a  judgment,  establishing  a  will, 
may  be  maintained,  by  any  person  interested  in  the 
establishment  thereof,  in  either  of  the  following  cases : 

1.  Where  a  will  of  real  or  personal  property,  or  both, 
has  been  executed,  in  such  a  manner  and  under  such 
circumstances,  that  it  might,  under  the  laws  of  the 
state,  be  admitted  to  probate  in  a  surrogate's  court;  but 
the  original  will  is  in  another  state  or  country,  under 
such  circumstances  that  it  cannot  be  obtained  for  that 
purpose;  or  has  been  lost  or  destroyed,  by  accident  or 
design,  before  it  was  duly  proved,  and  recorded  within 
the  state. 

2.  Where  a  will  of  personal  property,  made  by  a  per- 
son, who  resided  without  the  state,  at  the  time  of  the 
execution  thereof,  or  at  the  time  of  his  death,  has  been 
duly  executed,  according  to  the  laws  of  the  state  or 
country  in  which  it  was  executed,  or  in  which  the  tes- 
tator resided  at  the  time  of  his  death,  and  the  case  is  not 
one,  where  the  will  can  be  admitted  to  probate  in  a 
surrogate's  court,  under  the  laws  of  the  state.  (Co. 
Civ.  Proc.  §  1861). 

This  and  the  subsequent  five  sections  are  a  substitute 
for  the  revised  statutes  (2  Rev.  Stat.  67  to  71)   with 
some  changes.     Before  the  statute,  the  court  had  juris- 
diction to  establish  a  will  of  real  estate  which  had  been 
25 


386  PRACTICE. 

fraudulciillv  (le^lroyed  eiUier  bulVd-c  oi-  allcr  the  testa- 
tor's (lentil.  By  this  statute  the  Jurisdiction  was  ex- 
tended to  wills  of  i)ersonaUy  as  well,  {lioiccii  V.  Idley, 
G  Taij^e,  40  I.  The  rij^ht  to  establish  a  will  as  lost  or 
destroyed  includes  the  jurisdiction  to  set  aside  as  in- 
valid a  sul)se(iueut  will  purporting  to  be  a  revocation  of 
the  hrst.  (Id.).  A  lost  or  destroyed  will  may  be  ad- 
mitted to  probate  in  a  surrogate's  court,  but  only  in  a 
case  where  judgment  establishing  the  will  could  be 
rendered  b}'  the  supreme  court,  as  prescribed  in  section 
1865  of  the  code.      (Co.  Civ.  Proc.  §  2621). 

In  the  revised  statutes  the  section  which  corresponds 
to  the  first  subdivision  of  section  1861,  provided  that 
the  will  might  be  established  if  it  was  "  in  the  posses- 
sion of  the  court  of  another  country;'-  under  that  it 
was  held,  if  the  will  was  in  the  possession  of  a  notary 
public  of  another  country,  the  court  had  not  jurisdic- 
tion of  the  action.  {Matter  of  Dicz,  56  Barb.  591). 
The  code  changed  the  law  so  as  to  include  that  case,  and 
all  such  cases  where  the  will  could  not  be  obtained. 
( Younger  V.  Duflie,  94  N.  Y.  535) .  The  will  of  a  resident 
of  this  state,  executed  in  this  state,  and  before  witnesses 
residing  therein,  cannot  be  admitted  to  probate  by  a 
surrogate  of  this  state,  where  the  production  of  the 
will  is  rendered  impossible  by  the  fact  that  it  has  been 
filed  in  the  probate  court  of  another  state  where  it  has 
been  probated;  and  it  seems  an  action  for  its  estab- 
lishment under  section  1861  will  lie.  (Matter  of  Law, 
80  App.  Div.  73;  atTd.  on  op.  below,  175  N.  Y.  471; 
Matter  of  Cameron,  47  App.  Div.  120;  affd.  on  op.  be- 
low, 166  X.  Y.  610).  If  the  will  was  destroyed  by  the 
testator  acting  under  undue  intiucmce,  the  court  has 
jurisdiction  to  establish  it  under  this  section.  (Voor- 
hrcs  V.  T  oor//cr.s-,  39  X.  Y.  463).  Although  the  statute 
refers  to  a  will  which  has  been  lost  or  destroyed,  it  will 
be  given  a  liberal  construction  in  furtherance  of  justice, 
and  for  the  prevention  of  fraud;  and  the  fraudulent 
destructicin  of  a  single  item  or  clause,  or  a  distinct  por- 
tion or  provision  of  a  will  is  Avithin  the  statute,  and 
gives  the  court  jurisdiction  of  the  action  to  establish  it, 
if  such  destruction  affects  the  property  of  the  testator 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   387 

in  any  essential  particular.  (Hook  v.  Pratt,  8  Hun, 
102).  The  rule  laid  down  by  subdivision  two  of  sec- 
tion 1861  is  the  same  as  that  which  was  laid  down  in 
the  case  of  Moultrie  v.  Hunt  (3  Brad.  322;  26  Barb. 
252).  It  was  afterwards  reversed  by  the  court  of 
appeals.  (23  N.  Y.  394).  The  case  in  the  court  of 
appeals  is  not  now  the  laAV. 

In  an  action  of  partition  in  which  the  intestacy  of. 
the  ancestor  is  alleged,  a  defendant  may  prove  a  lost 
will  as  a  defense ;  and  this  may  be  done  under  a  general 
denial.  {Wldtney  v.  Whitneij,  171  N.  Y.  176).  Section 
1861  does  not  authorize  an  action  to  establish  the  will 
of  a  resident  of  another  state  which  has  been  duly  pro- 
bated in  such  state.  {Clark  v.  Poor,  73  Hun,  143; 
appeal  dismissed,  144  N.  Y.  699 ) . 

Courts  of  equity  have  no  general  jurisdiction  over  the 
establishment  or  setting  aside  of  wills  {Anderson  V. 
Anderson,  112  N.  Y.  113;  Delaharre  V.  McAlpin,  71  App. 
Div.  591)  ;  although  actions  for  such  purposes  have  been 
entertained,  either  where  the  question  of  jurisdiction 
was  not  raised  {Van  Alst  v.  Hunter,  5  Johns.  Ch.  148; 
Clark  V.  Saivyer,  2  N.  Y'.  498)  ;  or  where  some  obstacle 
existed  in  the  way  of  the  pursuit  of  an  ordinary  action 
at  law.  {Brady  v.  McCosker,  1  N.  Y.  214;  Wallace  v. 
Payne,  14  App.  Div.  597). 

Sec.    2.    Who  are  proper  parties. 

The  statute  contains  no  directions  with  regard  to  the 
person  by  w^hom  such  an  action  shall  be  brought,  except 
that  the  action  to  establish  a  will  may  be  maintained 
by  any  person  interested  in  the  establishment  thereof. 
It  is  provided  that  any  person  designated  in  the  will  as 
executor,  devisee  or  legatee  or  any  other  person  inter- 
ested in  the  estate,  or  a  creditor  of  the  decedent,  or  any 
party  to  an  action,  brought  or  about  to  be  brought,  and 
interested  in  the  subject  thereof,  in  which  action  the 
decedent,  if  living,  would  be  a  proper  party,  may  pro- 
pound a  will  for  probate  to  the  surrogate's  court.  (Co. 
Civ.  Proc.  §  2614).  And  it  is  believed  that  any  of  the 
persons  mentioned  in  that  section  may  bring  the  action 
to  establish   m   will  under  section   1861.       {Donlon  v. 


388  PKACTICE. 

KimhaU,  Gl  App.  Div.  31).  All  parties  having  an 
iuterest  in  contestiuy;  the  will  should  be  joined  as  de- 
fendants. {Matter  of  Atkinson,  2  Paige,  214).  In  pro- 
ceedings  to  propound  a  will  in  the  surrogate's  court, 
the  following  persons  must  be  cited : 

1.  If  the  will  relates  exclusively  to  real  property,  the 
husband  or  wife,  if  any,  and  all  the  heirs  of  the  testator. 

2.  If  the  will  relates  exclusively  to  personal  property, 
the  husband  or  wife,  if  any,  and  all  the  next  of  kin  of 
the  testator. 

3.  If  the  will  relates  to  both  real  and  personal  prop- 
erty, the  husband  or  wife,  if  any,  and  all  the  heirs,  and 
all  the  next  of  kin  of  the  testator.  (Co.  Civ.  Proc. 
§  2615). 

The  enumeration  in  that  section  includes  all  those 
persons  who  must  be  made  defendants  in  an  action 
brought  to  establish  a  Avill  under  section  1861. 

Sec.    3.    Pleadings  and  proceedings. 

No  particular  rules  are  given  in  the  statute  with 
regard  to  any  of  the  pleadings  or  proceedings  in  the 
action.  They  are  governed  by  the  same  general  rules 
which  are  applicable  to  all  other  actions.  If  the  will 
sought  to  be  established  is  a  will  of  real  estate,  the  com- 
plaint and  notice  of  pendency  of  the  action  should  be 
filed.  (Vol.  I,  p.  237).  If  any  of  the  defendants  are 
non-residents  they  should  be  served  by  publication. 
Judgment  by  default  can  only  be  taken  upon  applica- 
tion to  the  court.  The  pleadings  are  governed  by  the 
general  rules  that  are  applicable  to  all  actions.  A  form 
of  a  complaint  in  a  particular  case  may  be  found  in 
Younger  v.  Duffie  (28  Hun,  242;  94  N.  Y.  535) ;  but  this 
case  lays  down  no  general  rules  with  regard  to  plead- 
ings in  these  actions. 

Where  the  estate  of  a  decedent  has  been  brought 
under  the  jurisdiction  of  the  supreme  court  by  an 
action  for  partition  or  distribution,  or  for  the  construc- 
tion or  establishment  of  a  will,  the  court  may,  upon 
the  death  of  the  sole  surviving  executor,  appoint  a 
receiver  of  the  estate,  pending  the  action,  upon  such 
terms  and   conditions,   and   upon   such   notice  to   the 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.   389 

parties  interested,  as  the  court  directs,  and  upon  such 
security,  if  any,  as  to  the  court  seems  proper.  For  the 
purpose  of  carrying  into  effect  the  judgment  and  orders 
of  the  court,  in  relation  to  the  estate,  a  receiver  so 
appointed,  is  the  successor  in  interest  of  the  surviving 
executor;  and  has,  subject  to  the  direction  of  the  court, 
the  like  power,  as  an  administrator  with  the  will 
annexed.      (Co.  Civ.  Proc.  §  1869). 

The  action  is  to  be  tried  by  the  court  at  special  term. 
To  entitle  the  plaintiff  to  judgment  in  the  action,  the 
facts  necessary  to  establish  the  validity  of  the  will  must 
be  shown.      (Co.  Civ.  Proc.  §  1862). 

But  the  plaintiff  is  not  entitled  to  a  judgment,  estab- 
lishing a  lost  or  destroyed  will,  as  prescribed  in  this 
article,  unless  the  will  was  in  existence  at  the  time  of 
the  testator's  death,  or  was  fraudulently  destroyed  in 
his  lifetime;  and  its  provisions  are  clearly  and  dis- 
tinctly proved  by  at  least  two  credible  witnesses,  a  cor- 
rect copy  or  draft  being  equivalent  to  one  witness.  ( Co. 
Civ.  Proc.  §  1865). 

If  it  is  alleged  that  the  will  was  destroyed,  its  exist- 
ence at  the  time  of  the  death  of  the  testator  may  be 
proved  by  circumstantial  evidence.  (Schultz  V. 
Schultz,  35  N.  Y.  653).  Such  proof  is  not  suflflciently 
made  by  showing  the  declarations  of  the  testator  seven 
months  before  his  death  that  he  made  such  a  will. 
{Collyer  v.  Collyer,  17  Abb.  N.  C.  328;  s.  c,  4  Dem.  53; 
affd.,  3  N.  Y.  St.  Rep.  135;  110  N.  Y.  481). 

In  fact,  such  declarations,  unless  made  under  such 
circumstances  as  to  become  part  of  the  res  gestae,  are 
not  competent  evidence  either  to  show  that  a  will  has 
been  made  or  that  it  has  not  been  revoked.  {Matter  of 
Kennedy,  30  Misc.  1;  53  App.  Div.  105;  167  N.  Y.  163). 
Where  a  will  has  been  executed  but  cannot  be  found  at 
decedent's  death,  the  presumption  is  that  it  was  de- 
stroyed by  decedent  himself  animo  revocandi  {Matter 
of  Kennedy,  supra)  ;  except  in  a  case  w^here  the  will  is 
shoVn  to  have  been  in  the  possession  of  some  person 
other  than  decedent.  {Schultz  v.  Schultz,  supra). 
The  fraudulent  destruction  of  the  will  is  sufficiently 
proved  if  it  appears  that  it  was  destroyed  in  the  life- 


39  0  PRACTICE. 

timo  of  the  testator  by  himself  acting  under  the  undue 
inllucnee  of  his  sou.  {Voorhces  v.  Voorhccs,  30  N.  Y. 
463).  The  fraudulent  destruction  of  a  will  which  would 
authorize  the  court  to  establish  it,  must  consist  in  some 
deceitful  contrivance,  device  or  practice  to  defeat  the 
wishes  and  intent  of  the  testator  with  regard  to  his  will. 
(Timon  v.  Cluff'y,  45  Barb.  438;  aftd.  without  op.,  suh. 
nam.  Convoy,  Excr.,  v.  Vlulfy,  41  N.  Y.  Gil),  note).  The 
accidental  destruction  of  a  Avill  during  the  lifetime  of 
testator  does  not  come  within  the  statute.  {Matter  of 
Reiffdd,  3G  Misc.  472).  To  sustain  an  action  to  estab- 
lish a  lost  will,  the  proof  must  be  clear  and  convincing, 
not  only  in  respect  to  its  j)rovisions  and  execution,  but, 
also,  in  case  of  an  alleged  loss  or  destruction  after  tes- 
tator's death,  that  it  was  in  existence  at  the  time  of 
such  death.  (Kahn  v.  Hoes,  14  Misc.  63;  Matter  of 
Purely,  46  App.  Div.  33)".  The  two  witnesses  as  to  the 
contents  of  the  will  need  not  have  been  witnesses  as  to 
execution  of  it.  (Matter  of  Waldroii,  19  Misc.  333), 
The  execution  of  the  will  must  be  proven  by  two 
witnesses,  and  this  requirement  can  only  be  ful- 
filled by  producing  two  at  least  of  the  subscrib- 
ing witnesses,  or  satisfactorily  accounting  for  the 
non-production  of  one  or  both  of  them,  and  then  prov- 
ing their  handwriting,  or  the  fact  that  they  signed  the 
will  as  witnesses  by  competent  testimon^^  {CoUyer  v. 
Collyer,  17  Abb.  N.  C.  328;  s.  c,  4  Dem.  53;  affd.,  3 
N.  Y.  St.  Rep.  135;  110  N.  Y.  481).  The  statutory  pro- 
vision requiring  two  witnesses  to  prove  the  provisions  of 
a  lost  or  destroyed  Avill,  only  applies  to  this  particular 
action.  It  does  not  change  the  common  law  rule  that 
a  will  may  be  established  in  certain  cases  by  testimony 
of  one  witness.  (Harris  v.  Harris,  26  N.  Y.  433) ; 
Upton  v.  Bernstein,  76  Hun,  516;  Matter  of  Kennedy, 
167  N.  Y.  163,  172). 

Sec.    4.    Judgment. 

If,  in  such  an  action,  the  facts  necessary  to  establish 
the  validity  of  the  will,  as  prescribed  in  section  1861 
are  satisfactorily  proved,  final  judgment  must  be  ren- 
dered, establishing  the  will  accordingly.      But  Avhere 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      391 

the  w  ill  of  a  person,  who  was  a  resident  of  the  state  at 
the  time  of  his  death,  is  established  as  prescribed  in 
section  1861,  the  judgment  establishing  it  does  not 
affect  the  construction  or  validity  of  any  provision  con- 
tained therein;  and  such  a  question  arising  with  re- 
spect to  any  provision,  must  be  determined  in  the  same 
action,  or  in  another  action  or  a  special  proceeding,  as 
the  case  requires,  as  if  the  will  was  executed  within  the 
state.      (Co.  Civ.  Proc.  §  1862). 

Where  the  parties  to  the  action,  who  have  appeared 
or  have  been  duly  summoned,  include  all  the  persons 
who  would  be  necessary  parties  to  a  special  proceeding, 
in  a  surrogate's  court,  for  the  probate  of  the  same  will 
and  the  grant  of  letters  thereupon,  if  the  circumstances 
were  such  that  it  could  have  been  proved  in  a  surro- 
gate's court;  the  final  judgment,  rendered  as  prescribed 
in  section  1862  must  direct,  that  an  exemplified  copy 
thereof  be  transmitted  to  the  surrogate  having  juris- 
diction, and  be  recorded  in  his  office;  and  that  letters 
testamentary^,  or  letters  of  administration  with  the  will 
annexed,  be  issued  thereupon  from  his  court,  in  the 
same  manner,  and  with  like  effect,  as  upon  a  will  duly 
proved  in  that  court.      (Co.  Civ.  Proc.  §  1863). 

A  copy  of  the  will  so  established,  or,  if  it  is  lost  or 
destroyed,  the  substance  thereof  must  be  incorporated 
into  a  final  judgment,  rendered  as  prescribed  in  section 
1863 ;  and  the  surrogate  must  record  the  same,  and  issue 
letters  thereupon,  as  directed  in  the  judgment.  (Co. 
Civ.  Proc.  §  1864). 

The  provisions  of  this  article  apply  as  well  to  wills 
made  before,  as  to  those  made  after,  the  code  took  effect. 
(Co.  Civ.  Proc.  §  1867). 


3J)2  PRACTICE. 

ARTICLE  V. 

ACTION    FOR   THE    CONSTRUCTION    OF   A    WILL. 

The  validity,  construction  or  effect,  under  the  laws  of 
the  state,  of  a  testamentary  disposition  of  real  property 
situated  within  the  state,  or  of  an  interest  in  such  prop- 
erty, which  would  descend  to  the  heir  of  an  intestate, 
may  be  determined,  in  an  action  brought  for  that  pur- 
pose, in  like  manner  as  the  validity  of  a  deed,  purport- 
ing to  convey  land,  may  be  determined.  The  judgment 
in  such  an  action  may  perpetually  enjoin  any  party 
from  setting  up  or  from  impeaching  the  devise,  or 
otherwise  making  any  claim  in  contravention  to  the 
determination  of  the  court,  as  justice  requires.  But 
this  section  does  not  apply  to  a  case,  where  the  question 
in  controversy  is  determined  by  the  decree  of  a  surro- 
gate's court,  duly  rendered  upon  allegation  for  that 
purpose,  as  prescribed  in  article  1  of  title  3  of  chapter 
XVIII  of  the  code,  where  the  plaintiff  was  duly  cited 
in  the  special  proceeding  in  the  surrogate's  court,  before 
the  commencement  of  the  action.  (Co.  Civ.  Proc. 
§  1866). 

The  provisions  of  this  article  apply  as  well  to  wills 
made  before,  as  to  those  made  after,  the  code  took  effect. 
(Co.  Civ.  Proc.  §  1867). 

Section  1866  was  a  revision  of  chapter  238  of  the 
Laws  of  1853,  as  amended  by  chapter  316  of  the  Laws 
of  1879.  The  former  act  was  repealed  by  the  repealing 
act  of  1880,  but  the  amendatory  act  of  1879  was  not 
expressly  repealed.  It  was,  however,  repealed  by  im- 
plication by  sections  1866  and  1867  of  the  code,  and 
those  sections  now  furnish  the  whole  statutory  law 
upon  the  subject  of  which  they  treat.  {Uorton  v.  Cant- 
iceJl,  108  N.  Y.  255;  Anderson  v.  Anderson,  112  N.  Y. 
104). 

Prior  to  any  statutory  enactment,  however,  courts  of 
equity  in  certain  cases  entertained  actions  for  the  con- 
struction of  wills  of  real  property,  basing  their  author- 
ity in  the  main  upon  their  jurisdiction  over  trusts.  It 
was  only  when  a  court  of  equity  was  moved  in  behalf 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      393 

of  an  executor,  trustee  or  cestui  que  trust  and  to  insure 
the  correct  administration  of  the  power  conferred  by 
a  will,  that  jurisdiction  was  assumed  to  give  a  con- 
struction to  a  doubtful  or  disputed  devise.  {Bailey  v. 
Briggs,  56  N.  Y.  413;  Mellen  v.  Mellen,  139  N.  Y.  210). 
An  heir  or  devisee  claiming"  a  mere  legal  title  in  real 
property  could  not  maintain  an  action  for  the  con- 
struction of  the  devise,  but  was  compelled  to  assert  his 
title  by  ejectment  or  other  legal  action,  or,  if  in  posses- 
sion, must  await  an  attack  upon  his  title.  {Wager  v. 
Wager,  89  N.  Y.  161;  Weed  v.  Weed,  94  N.  Y.  243). 
Even  an  executor  could  not  maintain  an  action  for  the 
construction  of  a  clause  of  a  will  disposing  of  real 
property,  unless  he  was  invested  with  a  trust  under  the 
will  in  reference  to  the  subject  matter  of  the  devise. 
{Dill  v.  Wisner,  88  N.  Y.  153).  An  heir  at  law  could 
not  allege  the  trust  for  the  purpose  of  giving  the  court 
jurisdiction,  while  denying  the  legal  existence  of  the 
trust  and  claiming  legal  rights  inconsistent  therewith. 
{Chipman  v.  Montgomery,  63  N.  Y.  221).  But  the 
existence  of  an  intervening  life  estate,  under  which  the 
life  tenant  is  in  possession,  may  present  such  an  im- 
pediment to  the  maintenance  of  an  action  at  law  as  to 
give  jurisdiction  to  a  court  of  equity.  {Kalish  v. 
Kalish,  166  N.  Y.  368).  An  instructive  discussion  and 
an  analysis  of  a  large  number  of  cases  bearing  upon  the 
jurisdiction  of  courts  of  equity  in  construing  devises  of 
real  property  are  to  be  found  in  Whitney  v.  Whitney 
(63  Hun,  59).  Of  course,  the  court  still  has  all  this 
equitable  jurisdiction. 

TN'ith  regard  to  personal  property,  an  executor  is 
always  a  trustee  and  one  claiming  an  interest  in  such 
personalty  either  as  legatee  under  the  will,  or  as  en- 
titled to  it  under  the  statute  of  distribution,  may,  when 
the  executor  claims  such  interest  in  his  own  right,  bring 
suit  to  settle  the  construction  and  ascertain  the  validity 
of  the  provisions  of  the  will  so  far  aS  plaintiff's  inter- 
ests are  concerned  and  to  obtain  from  the  executor  such 
portion  of  the  estate  as  he  is  entitled  to.  {Horton  V. 
Canttcell,  108  N.  Y.  255 ;  Kalish  v.  Kalish,  45  App.  Div. 
528;affd.,  166  N.  Y.  368). 


394  i'KACTlCE. 

The  extent  to  which  the  jurisdictiou  of  the  court  to 
l)ass  upou  the  coustruetiou,  validity  or  ellect  of  a  testa- 
meutarj  disposition  of  real  property  has  heen  enlarged, 
if  at  all,  by  section  ISGO  of  the  code,  has  not  been  iuUy 
determined  by  the  court  of  last  resort.  It  is  stated  in 
Mellen  v.  Mellcti  (13t)  N.  Y.  210)  that  the  power  of  the 
court  over  actions  for  the  construction  of  wills  has  been 
extended  by  this  section;  and  in  Read  v.  \\  illianis  (125 
K.  Y,  560)  that  this  section  has  extended  the  remedy 
so  as  to  include  suits  for  the  construction  of  devises  in 
behalf  of  heirs  claiming  adversely  to  the  will.  But  in 
neither  of  these  cases  was  the  statement  necessary  to 
the  decision.  In  Adams  v.  Becker  (47  Uun,  65)  it  is 
held  that,  under  this  section,  an  heir  at  law  may  bring 
an  action  for  the  construction  of  a  testator's  will  and 
an  adjudication  as  to  the  validity  of  attempted  devises 
and  the  nature  and  character  of  the  interests  of  the 
several  devisees  in  the  real  property  of  which  testator 
died  seized;  Avhile  it  is  held  in  ^^'hitl^cJJ  v.  Whitney  (63 
Hun,  59),  Jones  v.  Richards  (24  Misc.  625),  and  Kalish 
v.  Kalish  (45  App.  Div.  528;  affd.  on  other  grounds,  166 
N.  Y.  368)  that  this  section  does  not  authorize  the 
maintenance  of  a  suit  in  equity  to  determine  the  title 
to  real  property  where  the  plaintiff  has  an  adequate 
remed}^  at  law.  But  the  inference  to  be  drawn  from  the 
discussion  of  this  subject  b^'^  the  court  of  appeals  in 
Kalish  V.  Kalish  (166  X.  Y.  368,  at  371)  is  that  that 
court  did  not  agree  with  the  view  expressed  by  the 
appellate  division. 

Section  1866  does  not  refer  to  the  validity  of  the  will 
making  the  disposition  but  to  the  validity  of  the  dis- 
position so  made;  and  the  court  has  not  jurisdiction 
1)1/  reason  of  this  section  to  entertain  an  action  to  estab- 
lish a  will,  as  distinguished  from  an  action  to  construe 
it.  (Anderson  v.  Anderson,  112  N.  Y.  104).  An  action 
under  this  section  cannot  be  maintained  where  there 
is  not  a  disposition  of  any  interest  which  may  possibly 
be  enjoyed  in  actual  possession  during  the  lifetime  of 
plaintiff,  if  the  disposition  be  decreed  invalid.  {Morton 
V.  Cantwell,  108  N.  Y.  255).     It  is  not  sufficient  that  a 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      395 

mere  claim  be  made  as  to  the  invalidity  of  a  devise ;  but 
there  must  be  some  color  of  a  question  of  construction. 
(Id.).  And  it  sceuis  that  this  section  gives  no  power  to 
the  court  to  pass  upon  the  authority  of  an  executor 
under  a  power  of  sale;  and  that  one  cannot  maintain 
the  action  who  is  neither  heir  nor  devisee  but  merely  a 
purchaser  from  a  devisee.  {Mellen  v.  M  ell  en,  139  N.  Y. 
210). 

No  special  rules  are  prescribed  by  statute  concerning 
parties,  pleadings  and  proceedings  in  this  action,  which 
is  governed  by  the  general  rules  applicable  to  all 
actions.  It  is  necessary  that  all  persons  who  can  be 
affected  by  the  judgment  should  be  made  parties. 
[Monarque  v.  Monarque,  80  N.  Y.  320).  All  juris- 
dictional facts  should  be  stated,  including  the  fact  that 
plaintiff  has  not  an  adequate  remedy  at  law,  if  such 
fact  is  relied  on  as  the  gTound  of  the  action.  As  to  the 
appointment  of  a  receiver  in  certain  cases,  see  article 
IV  of  this  chapter. 


ARTICLE  VI. 

ACTION    DETERMINING    VALIDITY    OF    PROBATE    OF    A    WILL. 

SECTION. 

1.  When  and  by  whom  the  action  may  be  brovight. 

2.  Proceedings  in  the  action. 

3.  Judgment  in  the  action. 

Sec.    1.    WTien   and  by   ^vhom  tlie   action  may  be   brought. 

Any  person  interested  as  devisee,  legatee  or  other- 
wise, in  a  will  or  codicil  admitted  to  probate  in  this 
state,  as  provided  by  the  code,  or  any  person  interested 
as  heir  at  law,  next  of  kin  or  otherwise,  in  any  estate, 
any  portion  of  which  is  disposed  of,  or  affected,  or  any 
portion  of  Avhich  is  attempted  to  be  disposed  of  or 
affected,  by  a  will  or  codicil  admitted  to  probate  in  this 
state,  as  provided  by  the  code,  within  two  years  prior 
to  the  passage  of  this  act,  or  any  heir  at  law  or  next  of 
kin  of  the  testator  making  such  will,  may  cause  the 


300  PRACTICE. 

validity  or  invalidity  of  the  probate  thereof  to  be  de- 
termined in  an  action  in  the  supreme  court  for  the 
county  in  which  such  probate  was  had.  *  *  *  q-'he 
action  shall  be  commenced  within  two  years  after  the 
will  or  codicil  has  been  admitted  •to  probate,  but  per- 
sons within  the  age  of  minority,  of  unsound  mind,  im- 
prisoned, or  absent  from  the  state,  may  bring  such 
action  two  years  after  such  disability  has  been  removed. 
(Co.  Civ.  Proc.  §  2653a).  This  section  was  added  to 
the  code  by  chapter  591  of  the  Laws  of  1892.  Although 
the  probate  of  a  will  was  conclusive  as  to  personal 
property  after  one  year,  there  was  no  way,  prior  to  the 
enactment  of  this  section,  by  which  it  could  be  made 
conclusive  as  to  real  property.  {Leivis  v.  Cook,  150 
K.  Y.  163).  The  heir  or  devisee,  if  in  possession,  was 
obliged  to  await  an  attack  upon  his  title.  (Anderson 
V.  Anderson,  112  N.  Y.  113).  What  was  needed  was 
some  way  of  making  the  probate  conclusive  as  to  realty 
and  for  this  the  new  section  provided.  (Long  v.  Rogers, 
79  Hun,  441).  As  originally  enacted,  the  section  pro- 
vided that  the  "  validity  "  of  the  probate  might  be  de- 
termined in  an  action  brought  by  "  any  person  inter- 
ested in  a  will  or  codicil  admitted  to  probate  in  the 
state;"  and  it  was  held  in  Leivis  v.  Cook  (150  N.  Y. 
163),  overruling  several  cases  in  the  supreme  court, 
that  the  action  could  be  brought  only  by  one  interested 
in  the  maintenance  of  the  will  and  not  by  one  claiming 
in  hostility  to  it.  At  the  following  session  of  the  legis- 
lature the  section  was  twice  amended,  by  chapter  104 
and  chapter  701  of  the  Laws  of  1897.  The  amendment 
made  by  chapter  701  superseded  that  made  by  chapter 
104  [Read  v.  Curtin,  51  App.  Div.  545;  Welh  v.  Betts, 
45  App.  Div.  115) ;  although,  it  seems,  either  amend- 
ment would  have  had  the  same  effect  as  the  other.  The 
section  as  given  above  is  as  amended  by  chapter  701. 
The  action  can  now  be  brought  either  by  a  person  in- 
terested in  sustaining  the  will  (Dohie  v.  Armstrong, 
IGO  N.  Y.  584)  ;  or  by  a  person  claiming  in  hostility  to 
it.  (Hagan  v.  Sone,  174  X.  Y.  317).  AATiere,  however, 
the  complaint  merely  alleged  that  plaintiff  was,  by  a 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT.      397 

prior  will,  the  devisee  of  a  piece  of  real  property  which 
was  devised  to  others  by  a  later  will,  claimed  to  have 
been  procured  by  fraud  and  undue  influence,  and  did 
not  allege  that  testator  owned  such  real  property  at  the 
time  of  making  the  later  Avill,  or  that  it  was  devised 
thereby,  or  that  plaintiff  was  an  heir  at  law  or  next  of 
kin  or  a  devisee  or  otherwise  interested  under  the  later 
will,  a  demurrer  to  the  complaint  in  an  action  to  de- 
termine the  validity  of  the  probate  of  such  later  will 
was  properly  sustained.  (Ocobock  v.  Eeles,  37  App. 
Div.  114).  But  the  complaint  states  a  good  cause  of 
action,  as  against  a  motion  to  dismiss  upon  the  plead- 
ings, where  it  alleges  that  plaintiff  is  devisee  under  a 
prior  will  and,  also,  states  facts  showing  that  plaintiff 
would  have  an  estate  as  tenant  by  the  curtesy  in  the 
real  property  of  decedent,  if  no  valid  testamentary  dis- 
position of  it  has  been  made.  {Wells  v.  Betts,  45  App. 
Div.  115).  The  statute  does  not  give  a  right  of  action 
to  one  who,  though  coming  within  the  terms  of  the 
statute,  can  be  in  no  way  affected  by  the  result  of  the 
action.  {Miller  v.  Maujer,  82  App.  Div.  419).  The 
two  years  within  which  the  action  must  be  commenced 
runs  from  the  date  of  the  final  probate  and  not  from 
that  of  an  earlier  probate  w^hich  has  been  set  aside. 
{Leiois  v.  Cook,  89  Hun,  183;  revd.  on  another  ground, 
150  N.  Y.  163).  Prior  to  1897  it  was  held  that  an 
action  to  set  aside  the  probate  of  a  will  of  personal 
property  must  be  begun  within  one  year  of  probate 
{Long  v.  Rogers,  79  Hun,  441;  Katz  v.  ^chnaicr,  87 
Hun,  343)  ;  but  the  amendment  of  section  2626  of  the 
code  (made  by  chap.  598,  Laws  of  1897),  which  excepts 
actions  under  section  2653a  from  the  rule  laid  down  in 
section  2626 — that  a  decree  admitting  to  probate  a 
will  of  personal  property  is  conclusive — seems  to  have 
changed  the  rule  established  by  these  cases.  It  seems 
that  an  election  to  take  under  the  will  precludes  a  sub- 
sequent action  to  set  it  aside.  {Katz  v.  Sclmaier,  87 
Hun,  343). 


308  PRACTICE. 

Sec.    2.    Proceedings  in  tlie  action. 

All  the  devisees,  legatees  and  heirs  of  the  testator 
and  other  interested  persons,  including  the  executor  or 
administrator,  must  be  parties  to  the  action.  (Co.  Civ. 
Proc.  §  2G53a;  ^'^^w^D  V.  HuinlUon,  1)0  Hun,  157).  But 
even  though  a  necessary  party  is  omitted,  the  court  has 
jurisdiction  of  the  action,  and  the  judgment  is  conclu- 
sive uiJou  those  who  are  made  parties.  {Matter  of 
Ruppancr,  9  App.  Div.  422;  alfg.,  15  Misc.  654). 

Upon  the  completion  of  service  of  all  parties,  the 
plaintiff  shall  forthwith  file  the  summons  and  com- 
plaint in  the  ofiQce  of  the  clerk  of  the  court  in  which 
said  action  is  begun,  and  the  clerk  thereof  shall  forth- 
with certify  to  the  clerk  of  the  surrogate's  court  in 
which  the  Avill  has  been  admitted  to  probate,  the  fact 
that  an  action  to  determine  the  validity  of  the  probate 
of  such  will  has  been  commenced,  and  on  receipt  of  such 
certificate  by  the  surrogate's  court,  the  surrogate  shall 
forthwith  transmit  to  the  court  in  which  such  action 
has  been  beg-un  a  copy  of  the  will,  testimony,  and  all 
papers  relating  thereto,  and  a  copy  of  the  decree  of 
probate,  attaching  the  same  together  and  certifying  the 
same  under  the  seal  of  the  court.  (Co.  Civ.  Proc. 
§  2653a). 

It  seems  that  the  filing  of  the  summons  and  com- 
plaint with  the  clerk  of  the  court,  his  certificate,  and 
the  transmission  of  the  papers  by  the  surrogate  are  not 
juris<l)ctional  facts  but  merely  the  subject  of  a  motion 
at  special  term;  and  that  the  production  of  the  neces- 
sary papers  at  the  trial  is  sufficient.  {Johnson  v. 
Cochrane ,  91  Hun,  165;  affd.  on  op.  below,  159  N.  Y. 
555).  The  issue  of  the  pleadings  shall  be  confined  to 
the  question  of  whether  the  writing  produced  is  or  is 
not  the  last  will  or  codicil  of  the  testator  or  either.  It 
shall  be  tried  by  a  jury  and  a  verdict  thereon  shall  be 
conclusive  as  to  the  real  or  personal  property,  unless  a 
new  trial  be  granted  or  the  judgment  thereon  be  re- 
versed or  vacated.      (Co.  Civ.  Proc.  §  2653a). 

This  direction  is  not  mandatory  and  does  not  require 
that  the  issue  should  be  submitted  to  the  jury  in  all 


ACTIONS  RELATING  TO  THE  E.STATE  OF  A  DECEDENT.      399 

cases,  but  the  court  may  direct  a  verdict  as  in  other 
actions  {Haioghiau  v.  Conlon,  SO  App.  Div.  290;  Dohie 
V.  Armstrong^  160  N.  Y.  584)  ;  but  when  the  evidence 
given  is  of  such  a  character  that  different  inferences 
may  reasonably  be  drawn  from  it,  the  direction  of  a 
verdict  constitutes  reversible  error.  [Hagan  v.  Sone, 
174  N.  Y.  317;  reversing  68  App.  Div.  60).  The  judg- 
ment may  be  reversed  by  the  appellate  division  if 
against  the  weight  of  evidence.  (Dunham  v.  Dunham, 
63  App.  Div.  264;  Buchanan  v.  Bclsey,  65  App.  Div.  58). 
On  the  trial  of  such  issue  the  decree  of  the  surrogate 
admitting  the  will  or  codicil  to  probate  shall  be  prima 
facie  evidence  of  the  due  attestation,  execution  and 
validity  of  such  will  or  codicil.  A  certified  copy  of  the 
testimony  of  such  of  the  witnesses  examined  upon  the 
probate  as  are  out  of  the  jurisdiction  of  the  court,  dead, 
or  have  become  incompetent  since  the  probate,  shall  be 
admitted  in  evidence  on  the  trial.  The  party  sustain- 
ing the  will  shall  be  entitled  to  open  and  close  the  evi- 
dence and  argument.  He  shall  offer  the  will  in  probate 
and  rest.  The  other  party  shall  then  offer  his  evidence. 
The  party  sustaining  the  will  shall  then  offer  his  other 
evidence  and  rebutting  testimony  may  be  offered  as  in 
other  cases.  (Co.  Civ.  Proc.  §  2653a).  The  decree  of 
the  surrogate  admitting  the  will  to  probate  is  prima 
facie  evidence  of  its  due  execution  and  validity  {Heath 
v.  Koch,  74  App.  Div.  338;  affd.  without  op.,  173  N.  Y. 
629)  ;  and  the  burden  of  overcoming  the  same  is  upon 
the  one  asserting  the  invalidity.  {Dohie  v.  Armstrong, 
160  N.  Y.  584).  The  court  has  not  the  power,  pending 
the  action,  to  appoint  a  receiver  of  the  property  in- 
volved. {Johnson  v.  Cochrane,  91  Hun,  163;  affd.  on 
op.  below,  159  N.  Y.  555). 

Sec.    3.    Judgment  in  the  action. 

If  all  the  defendants  make  default  in  pleading,  or  if 
the  answers  served  raise  no  issues,  the  plaintiff  may 
enter  judgment  as  provided  in  article  2  of  chapter  XI 
of  the  code  in  the  case  of  similar  defaults  in  other 
actions.      If  the  judgment  is  that  the  writing  produced 


400  PRACTICE. 

is  the  last  will  and  codicil,  or  either,  of  the  testator, 
said  judgment  shall  also  provide  that  all  parties  to  said 
action  and  all  persons  claiming  under  them  subse- 
quently to  the  commencement  of  said  action,  be  en- 
joined from  bringing  or  maintaining  any  action  or  pro- 
ceeding, or  from  interposing  or  maintaining  a  defense 
in  any  action  or  proceeding  based  upon  a  claim  that 
such  writing  is  not  the  last  will  or  codicil,  or  either  of 
the  testator.  *  *  *  When  final  judgment  shall  have 
been  entered  in  such  action,  a  copy  thereof  shall  be 
certified  and  transmitted  to  the  clerk  of  the  surrogate's 
court  in  which  such  will  was  admitted  to  probate.  (Co. 
Civ.  Proc.  §  2653a). 

A  judgment  by  default  in  this  action  is  as  conclusive 
as  any  other  and  cannot  be  attacked  collaterally. 
(Henriques  v.  Yale  University,  28  App.  Div.  354;  app. 
dismissed,  157  N.  Y.  622).  If  plaintiff,  attacking 
the  will,  declines  to  proceed  with  the  trial,  defendant 
need  not  be  satisfied  with  a  mere  dismissal  of  the  com- 
plaint, but  may  make  his  proof  and  take  judgment 
affirming  the  validity  of  the  will,  even  though  no 
counterclaim  is  set  up  in  the  answer.  (Delmar  v. 
Delmar,  63  App.  Div.  264).  If  the  judgment  is  irregu- 
lar by  reason  of  the  fact  that  it  is  entered  in  favor  of 
all  the  defendants,  whereas  some  have  not  been  served, 
the  irregularity  must  be  corrected  by  motion.  {Sea- 
grist  v.  Bigrist,  20  App.  Div.  336).  A  judgment  de- 
termining the  validity  of  the  probate  is  a  bar  to  an 
action  of  partition  brought  pursuant  to  section  1537 
of  the  code  {Henriques  v.  Yale  University,  supra),  and 
also  to  an  application  to  the  surrogate  for  the  revoca- 
tion of  the  probate  under  section  2647  of  the  code. 
{Matter  of  Ruppaner,  15  Misc.  654;  affd.,  9  App.  Div. 
422).  Since  the  enactment  of  this  section,  there  seems 
to  be  but  little,  if  anything,  to  be  gained  by  an  appeal 
from  a  decree  of  a  surrogate  admitting  a  will  to  pro- 
bate. {Matter  of  Brand,  68  App.  Div.  225).  An  order 
of  the  appellate  division  affirming  the  surrogate's  de- 
cree does  not  stand  in  the  way  of  the  action.  {Austin 
V.  Slocum,  47  App.   Div.   641;  affd.  without  op.,  165 


ACTIONS  RELATING  TO  THE  ESTATE  OF  A  DECEDENT,      401 

N.  Y.  667).  It  is  in  the  power  of  the  court  in  this 
action  to  grant  the  prevailing  party  an  allowance  in 
addition  to  costs.  {Delmar  v.  Delmar,  supra;  Seagrist 
V.  Sigrist,  supra).  It  seems  that  section  2653a  fur- 
nishes an  adequate  remedy  at  law  whereby  an  heir  may 
attack  a  will  alleged  to  be  void,  and  that  the  court  will 
not,  on  the  ground  of  inadequacy  of  legal  remedy,  enter- 
tain an  equitable  action  to  set  aside  such  will.  ( Wallace 
V.  Payne,  9  App.  Div.  34;  14  App.  Div.  597).  An 
action  will  lie  to  set  aside  a  judgment  obtained  by 
collusion  under  this  section.  {Ellensohn  v.  Keyes,  6 
App.  Div.  601;  appeal  dismissed,  151  N.  Y.  641). 
26 


CHAPTER  LVIII. 

JUDGMENT   CREDITOR'S   ACTION. 


ARTICLE  I.  .  .  When  it  may  be  brought. 
ARTICLE  II.  .Proceedings  in  the  action. 


ARTICLE  I. 

WHEN   IT   MAY   BE   BROUGHT. 

SECTION. 

1.  For  what   purposes. 

2.  In  what  cases  action  may  be  maintained. 

Sec.    1.    For  \irhat  purposes. 

"  A  judgment  creditor's  action "  is  defined  as  an 
action  brought  as  prescribed  in  article  I,  title  4,  chapter 
XVI  of  the  code,  or  any  other  action  brought  by  the 
judgment  creditor  to  aid  the  collection  of  a  judgment 
for  a  sum  of  money,  or  directing  the  payment  of  a  sum 
of  money.  (Co.  Civ.  Proc.  §  3343,  subd.  14).  A  judg- 
ment creditor's  action,  or  a  creditor's  bill,  as  it  was 
formerly  called,  is  an  old  head  of  equity  jurisdiction. 
Such  a  suit  lay  when  it  appeared  that  the  judgment 
creditor  could  not  reach  the  property  of  his  debtor  by 
proceedings  at  law.  It  might  be  brought  for  the  dis- 
covery of  assets;  to  reach  equitable  and  other  interests 
not  subject  to  levy  and  sale  at  law,  and  to  set  aside 
fraudulent  conveyances  and  obstructions.  (3  Pom.  Eq. 
Jur.  §  1415).  The  action  for  a  discovery  of  the  assets 
is  not  now  often  resorted  to;  although  the  courts  still 
have  jurisdiction  in  such  actions.  It  has  been  replaced, 
for  all  practical  purposes,  by  the  code  provisions  (§ 
2432,  et  seq.)  for  supplementary  proceedings.  (See 
Matter  of  Lisner  v.  Toplitz,  86  App.  Div.  1). 

(403) 


404  PRACTICE. 

The  code  provides  that  au  action  may  be  maintained 
to  compel  the  discovery  of  any  thing  in  action  or  other 
property  beh)n«,nng  to  the  jiidi;-ment  debtor,  and  of  any 
money,  thing  in  action  or  other  property  due  to  him  or 
held  in  trust  for  him,  to  prevent  the  transfer  thereof,  or 
the  payment  or  delivery  thereof  to  him  or  to  any  other 
person,  and  to  procure  satisfaction  of  the  plaintiff's  de- 
mand. (Co.  Civ.  Proc.  §  1871).  Actions  by  a  judg- 
ment creditor  are  now  usually  of  two  kinds;  the  first  is 
where  it  is  alleged  that  the  debtor  has  equitable  assets 
which  cannot  be  reached  by  an  execution;  the  second 
is  based  upon  the  allegation  that  the  debtor  possesses 
property  which  in  its  nature  is  liable  to  seizure  and  sale 
on  execution,  but  that  by  fraudulent  incumbrances 
upon  the  same,  the  execution  cannot  be  enforced.  The 
aid  of  the  court  of  equity  is  therefore  invoked  to  remove 
the  incumbrances  so  that  process  at  law  may  be  effectu- 
ally enforced.  {M.  &  T.  Bk.  v.  Dakin,  51  N.  Y.  519). 
In  addition  to  the  actions  which  may  be  brought  by  a 
judgment  creditor,  it  is  f>rovided  (§  7  of  the  Personal 
Property  Law)  that  an  executor,  administrator,  re- 
ceiver, assignee  or  trustee,  may,  for  the  benefit  of  cred- 
itors or  others  interested  in  personal  property,  held  in 
trust,  disaffirm,  treat  as  void  and  resist  any  act  done, 
or  transfer  or  agreement  made  in  fraud  of  the  rights 
of  any  creditor,  including  himself,  interested  in  such 
estate,  or  property;  also  that  a  person  who  fraudulently 
receives,  takes  or  in  any  manner  interferes  with  the  per- 
sonal property  of  a  deceased  person,  or  an  insolvent 
corporation,  association,  partnership  or  individual  is 
liable  to  such  executor,  administrator,  receiver  or  trus- 
tee for  the  same  or  the  value  thereof,  and  for  all  dam- 
ages caused  by  such  act  to  the  trust  estate.  The  sec- 
tion in  question  also  provides  that  a  creditor  of  a  de- 
ceased insolvent  debtor  having  a  claim  against  the 
estate  of  such  debtor,  exceeding  in  amount  the  sum  of 
one  hundred  dollars,  may,  without  obtaining  a  judg- 
ment on  such  claim  (which  may  be  established  in  the 
action,  if  disputed),  in  like  manner,  for  the  benefit  of 
himself  and  other  creditors  interested  in  said  estate, 
disaffirm,  treat  as  void  and  resist  any  act  done  or  con- 


.JUDGMENT   creditor's   ACTION.  405 

veyance,  transfer  or  agi'eement  made  in  fraud  of  cred- 
itors or  maintain  an  action  to  set  aside  such  act,  con- 
veyance, transfer  or  agreement.  Section  232  of  the 
Real  Property  Law  is  in  substantially  the  same  wording 
as  section  7  of  the  Personal  Property  Law;  it  is  not 
necessary,  therefore,  to  set  it  forth  here.  The  two  sec- 
tions take  the  place  of  the  one  earlier  statute  (chap. 
314,  Laws  1858)  on  the  subject.  A  discussion  of  the 
history  and  development  of  this  statute  as  it  now  exists 
in  section  7  of  the  Personal  Property  Law,  will  suffice 
to  cover  section  232.  The  last-quoted  sentence  of  sec- 
tion 7  of  the  Personal  Property  Law  was  added  to  the 
original  act  (chap.  314,  Laws  1858) — such  original 
act  being,  in  substance,  what  is  now  the  first  sentence 
of  section  7,  as  above  set  forth — by  chapter  487  of  the 
Laws  of  1889.  Prior  to  the  addition  of  such  clause,  it 
had  been  held  that  one  of  the  class  named  in  the  statute 
(an  executor,  administrator,  etc.)  could  bring  the 
action  without  first  obtaining  a  judgment,  having  an 
execution  thereon  returned  unsatisfied,  etc.,  and,  in  the 
case  of  an  assignee  for  creditors,  although  all  the  cred- 
itors were  simple  contract  (as  distinguished  from  judg- 
ment) creditors  {Southard  v.  Benner,  72  N.  Y.  424; 
Reynolds  v.  Ellis,  103  N.  Y.  115) ;  and  also  that,  where 
an  administrator,  after  demand,  refused  to  bring  the 
action,  one  of  the  creditors  of  the  intestate  might  bring 
the  action  without  obtaining  judgment,  etc.  [Harvey 
V.  McDonnell,  113  N.  Y.  526).  The  amendment  of  1889 
gives  the  creditor  (having  a  claim  of  over  one  hundred 
dollars)  of  a  deceased  insolvent  debtor  a  primary  right 
to  maintain  the  action  (see  Nat.  Bk.  of  Republic  v.  Thur- 
her,  39  Misc.  13),  so  the  doctrine  of  the  Harvey  case 
(supra),  seems  to  have  become  obsolete,  as  a  practical 
matter.  It  is  to  be  noted  that  actions  brought  under 
section  7  of  the  Personal  Property  Law  and  section  232 
of  the  Real  Property  Law  are  not,  strictly  speaking, 
judgment  creditor's  actions. 

Equitable  assets,  to  reach  which  an  action  may  be 
maintained,  as  spoken  of  above,  are  such  as  are  not  sub- 
ject to  levy  and  sale  on  execution.  They  are  as  various 
as  the  kinds  of  property.    Among  them  are  wages  of  the 


400  IMLVCTICE. 

delttor  {Kiii</ni<in  v.  Fniiik,  33  Ilini,  471)  ;  any  ri.uht  of 
action  whi<li  llic  ilclrtor  had,  except  a  cause  of  action  for 
a  personal  injiiiv  or  for  an  injury  to  property  which  is 
exempt  from  exeiMition  (JJitdson  v.  Plets,  11  Paiji^e, 
180)  ;  the  distributive  share  of  the  debtor  as  next  of  kin 
of  the  ancestor  {Mc Arthur  v.  Hoysradt,  11  Paige,  495)  ; 
or  a  ri<»ht  of  dower  of  the  judiiiiient  debtor  before  ad- 
measurejuent  {tSicicurt  v.  McMarliti,  5  Barb.  438)  ;  but 
not  a  bare  possibility,  as  a  right  which  one  may  have  as 
next  of  kin  or  heir  at  law  of  a  living  person  {Smith  v. 
Eearnty,  2  Barb.  Ch.  533)  ;  or  a  trust  created  for  a  wife 
of  a  debtor  for  her  life,  and  then  for  the  debtor  for  his 
life.  {Myer  v.  Thomson,  35  Ilun,  5G1).  Such  a  contin- 
gent interest  as  that  mentioned  in  the  case  last  cited 
cannot  be  reached  in  a  judgment  creditor's  action.  A 
legacy  due  to  a  judgment  debtor  may  be  reached  in  such 
an  action  {Hallett  v.  Thompson,  5  Paige,  583)  ;  or  an 
annuity  given  to  her  in  lieu  of  dower.  {De  Graio  v. 
Chison,  11  Paige,  136).  So  a  vendee's  interest  in  land 
which  he  has  paid  for  but  of  Avhich  no  deed  has  been 
given  to  him,  may  be  reached  by  a  creditor's  action.  A 
judgment  creditor  in  such  an  action  is  entitled  to  have 
the  proceeds  of  lands  of  the  debtor  which  have  been  sold 
coUusively  on  a  judgment  against  him,  applied  in  pay- 
ment of  his  judgment  debt.  {Decker  v.  Decker,  108  N. 
Y.  128).  Where  a  judgment  debtor  is  the  beneficiary  of 
a  trust,  pursuant  to  whieli  the  trustees  are  required  to 
receive  and  pay  over  to  him  the  income  from  the  trust 
estate,  an  action  may  be  maintained  by  the  judgment 
creditor  after  tlie  return  of  an  execution  unsatisfied,  to 
reach  the  surplus  income  beyond  what  is  necessary  for 
the  suitable  support  and  maintenance  of  the  cestui  que 
trust  and  those  dependent  upon  him.  ( Williams  v. 
Thorn,  70  N.  Y.  270;  ToUes  v.  Wood,  99  N.  Y.  616). 
Where  such  a  trust  was  created  by  a  person  other  than 
the  judgment  debtor,  the  judgment  creditor's  action  is 
under  section  78  of  the  Beal  Property  Law — not  under 
the  code  provisions  (§§  1871-1 879)  as  we  shall  see  here- 
after. 

The  action  may  be  maintained  also  by  the  creditor  to 
establish  a  lien  upon  the  lands  which  have  been  paid  for 


JUDGMENT   CREDITOR'S   ACTION.  407 

by  the  debtor,  but  conveyed  to  another  by  his  direction. 
(The  Eeal  Property  Law,  §  74;  Garfield  v.  Hatmaker, 
15  N.  Y.  475).  Such  an  action  may  be  maintained  al- 
though the  judgment  was  never  a  lien  upon  the  lands, 
and  they  were  bought  by  the  debtor  after  the  recovery 
of  the  judgment.  {Scouille  v.  Shed,  36  Hun,  165).  Such 
an  action,  however,  can  be  maintained  only  where  the 
debtor  paid  for  the  land  at  the  time  of  the  conveyance, 
and  as  a  part  of  the  contract  of  sale.  If  the  land  was 
bought  and  paid  for  by  the  grantee  and  afterwards  the 
money  was  loaned  or  advanced  by  the  debtor  to  the 
grantee  to  pay  his  debt  or  an  incumbrance  which  he 
had  put  upon  the  land,  a  creditor  cannot  establish  a  lien 
upon  the  land  unless  it  is  proved  that  the  transaction 
was  made  with  the  intent  to  hinder,  delay  or  defraud 
creditors.  {Xiver  v.  Crane,  98  N.  Y.  40).  The  term 
"equitable  assets"  also  includes  all  property  which  in  its 
nature  is  subject  to  execution,  but  which  has  been  trans- 
ferred or  conveyed  by  the  debtor  with  intent  to  hinder, 
delay  or  defraud  creditors  and  to  prevent  them  from 
procuring  the  application  of  the  property  upon  their 
judgments.  (The  Personal  Property  Law,  §§  24-29), 
In  such  case,  equity  regards  the  j)roperty  as  belonging 
to  the  judgment  debtor  and  the  grantee  or  assignee  as 
trustee  ex  maleficlo  for  the  creditors.  {Dewey  v. 
Moyer,  72  N.  Y.  70;  James  Goold  Co.  v.  Melieady,  38 
Hun,  294 ) .  In  such  case  the  fraudulent  grantee  may  be 
required  to  account  for  the  rents  and  profits  received  by 
him  while  he  was  in  possession  of  the  property.  {Loos 
V.  Wilkinson,  110  N.  Y.  195).  In  cases  of  this  nature 
there  can  be  no  recovery  without  proof  that  the  transfer 
was  made  with  intent  to  hinder,  delay  or  defraud  cred- 
itors. {Truesdell  v.  Sarles,  104  N.  Y.  164).  An  action 
may  also  be  maintained  by  a  judgment  creditor  to  re- 
move obstructions  and  set  aside  fraudulent  dispositions 
of  the  debtor's  property  preventing  the  execution  from 
being  made  effectual.  In  this  class  of  actions  the  court 
interposes,  under  its  general  eciuitable  authority,  to  re- 
lieve creditors  where  no  adequate  legal  remedy  can  be 
applied  for  that  purpose.  But  this  jurisdiction  extends 
no  further  than  to  authorize  the   interference  of  the 


408  PRACTICE. 

court  after  a  judgment  shall  have  beeu  recovered  and  an 
execution  issued  to  the  proper  county  upon  it  against 
the  property  of  the  debtor.  (Bowe  V.  Arnold,  31  Hun, 
256;  affd.  on  op.  below,  101  N.  Y.  652). 

Sec.    2.    In  \irliat  cases  action  may  be  maintained. 

A  judgment  creditor  may  maintain  the  action  where 
an  execution  against  the  property  of  the  judgment 
debtor  issued  out  of  a  court  of  record  has  been  returned 
wholly  or  partly  unsatisfied.     (Co.  Civ.  Proc.  §  1871). 

The  provisions  of  this  section  are  the  same  as  those  of 
the  revised  statutes.     (2  Rev.  Stat.  173,  §  38). 

This  article  (art.  1,  title  4,  chap.  XV,  of  the  code), 
does  not  apply  to  a  case,  where  a  judgment  debtor  is  a 
corporation,  created  by  or  under  the  laws  of  the  state. 
Nor  does  it  authorize  the  discovery  or  seizure  of,  or 
other  interference  with,  any  property,  which  is  expressly 
exempted  by  law  from  levy  and  sale,  by  virtue  of  an  exe- 
cution ;  or  any  money,  thing  in  action,  or  other  prop- 
erty, held  in  trust  for  a  judgment  debtor,  where  the 
trust  has  been  created  by,  or  the  fund  so  held  in  trust 
has  proceeded  from,  a  person  other  than  the  judgment 
debtor;  or  the  earnings  of  the  judgment  debtor  for  his 
personal  services,  rendered  within  sixty  days  next  be- 
fore the  commencement  of  the  action,  where  it  is  made 
to  appear,  by  his  oath  or  otherwise,  that  those  earnings 
are  necessary  for  the  use  of  a  family,  wholly  or  partly 
supported  by  his  labor.     (Co.  Civ.  Proc.  §  1879). 

It  is  to  be  noted  that,  by  express  provision  of  this 
section,  the  judgment  creditor  cannot  attack  a  trust 
fund  for  the  benefit  of  the  judgment  debtor,  where  the 
trust  was  created  by,  or  the  trust  fund  proceeded  from, 
a  person  other  than  the  judgment  debtor;  but  it  is  pro- 
vided by  section  78  of  the  Real  Property  Law  that, 
where  a  trust  is  created  to  receive  the  rents  and  profits 
of  real  property,  and  no  valid  direction  for  accumula- 
tion is  given,  the  surplus  of  such  rents  and  profits,  be- 
yond the  sum  necessary  for  the  education  and  support  of 
the  beneficiary,  shall  be  liable  to  the  claims  of  creditors 
in  the  same  manner  as  other  personal  property,  which 
cannot  be  reached  by  execution.     Under  this  provision 


JUDGMENT   CREDITOll''S   ACTION.  409 

(formerly  1  Rev.  Stat.  729,  §  57),  which  has  been  held  to 
apply  to  personal  property  as  well  as  real  estate  [Wil- 
liams V.  Thorn,  10  N.  Y.  270;  Tolles  v.  Wood,  99  N.  Y. 
616;  Wetmore  v.  WctmorG,  149  N.  Y.  520),  relief  may  be 
sought  by  a  judgment  creditor  as  against  the  surplus  in- 
come of  a  trust  fund,  created  by  some  one  other  than  the 
judgment  debtor  for  his  benefit.  ( See  Keeney  V.  Morse, 
71  App.  Div.  104,  108-109).  The  plaintiff  in  an  action 
under  section  78  of  the  Real  Property  Law  must  be  a 
judgment  creditor.  [Dittmar  v.  Gould,  60  App.  Div. 
94 ) .  The  trustee  in  bankruptcy  of  the  beneficiary  can- 
not maintain  the  action.  (Butler  v.  Baudouine,  84  App. 
Div.  215;  affd.  without  op.,  177  N.  Y.  530). 

The  existence  of  these  statutory  actions  (the  one  un- 
der sections  1871-1879  of  the  code,  and  the  other  under 
section  78  of  the  Real  Property  Law)  has  not  deprived 
the  court  of  its  equitable  jurisdiction  over  fraudulent 
trusts  and  conveyances.  ( Chautauqua  Co.  Bk.  v.  White, 
6  N.  Y.  236;  Dittmar  v.  Gould,  60  App.  Div.  94,  99). 
Where  the  action  is  brought  under  the  code  or  the  stat- 
ute, the  rule  seems  to  be  absolute  that  the  plaintiff  must 
be  a  judgment  creditor  and  that  an  execution  must  have 
been  issued  and  returned  unsatisfied.  [Mandcville  v. 
Campbell,  45  App.  Div.  512;  Dittmar  v.  Gould,  supra). 
Where,  however,  the  action  is  one  within  the  inherent 
equitable  jurisdiction  of  the  court  [i.  e.,  an  attack  on  a 
fraudulent  conveyance  or  trust),  the  court  may  dis- 
pense with  these  requirements  if  a  sufl&cient  excuse  for 
their  non-fulfilment  is  shown.  {Nat.  Tradesmen's  Bk. 
V.  Wetmore,  124  N.  Y.  241 ;  Lefevre  v.  Phillips,  81  Hun, 
232 ;  Patchen  v.  Rofkar,  12  App.  Div.  475 ;  52  App.  Div. 
369). 

In  the  code,  or  statutory,  action  it  is  essential  that 
the  judgment  upon  which  it  is  founded  shall  have  been 
docketed;  if  that  does  not  appear,  there  is  no  cause  of 
action.  {Henderson  v.  Brooks,  3  T.  &  C.  445).  If  the 
judgment  was  recovered  in  a  court  not  of  record,  it  must 
have  been  docketed  in  the  county  clerk's  office  before  an 
action  in  the  nature  of  a  creditor's  bill  can  be  main- 
tained upon  it.  {Crippeny.  Hudson,  IS 'N.Y.  161).  An 
action  cannot  be  maintained  upon  a  foreign  judgment, 


•110  ■  I'KACTICE. 

nor  on  a  jnd.uuient  of  the  United  States  court,  althonfth 
recovered  within  tliis  state.  (Tarhcll  v.  (irujf/s,  3  I'aige, 
207;  Da  lis  v.  Brmis,  23  Ilun,  648).  If  the  judgment  is 
in  eiiuity  it  must  be  for  the  payment  of  money  and  must 
be  docketed  before  a  creditor's  bill  can  be  maintained 
upon  it.  {(J eery  v.  Geerjj,  63  N.  Y.  252).  Where  the 
action  was  to  foreclose  a  mortgage,  a  creditor's  bill  can- 
not be  maintained  for  a  deficiency  until  judgment  for 
the  deficiency  has  been  entered  and  docketed.  {Bank 
of  Rochester  v.  Emerson,  10  Paige,  115).  A  creditor's 
bill  may  be  maintaiiUHl  upon  a  judgment  for  the  pay- 
ment of  money  which  has  been  docketed,  whether  it  is 
in  law  or  equity.  {Gcery  v.  Geery,  63  N.  Y.  252).  The 
creditor  of  a  partnership  cannot  maintain  an  action  to 
reach  assets  of  the  firm  until  he  has  recovered  a  judg- 
ment against  the  surviving  partner.  (Lewishoii  v, 
Dreic,  15  Ilun,  467).  If  a  claim  is  against  joint  debtors, 
the  judgment  must  be  recovered  against  all  of  them,  in- 
cluding the  estate  of  any  one  who  is  alleged  to  be  dead. 
(Voorhees  v.  Eoicard,  4  Abb.  Ct.  App.  Dec.  503).  Where 
a  creditor  obtained  a  judgment  against  one  of  two  per- 
sons sued  as  joint  debtors,  and  issued  an  execution  upon 
his  judgment,  which  Avas  returned  unsatisfied,  it  was 
held  that  he  might  commence  a  creditor's  action  to  de- 
clare a  resulting  trust  in  regard  to  the  property  of  the 
debtor  against  whom  the  judgment  was  entered,  with- 
out exhausting  his  remedy  against  the  other  joint 
debtor.  (Hiler  v.  Hettericl-,  5  Daly,  33).  In  Lichtcn- 
herg  v.  Eerdtf elder  (103  N.  Y.  302),  it  was  held  that  a 
judgment  recovered  against  an  executor  after  the  death 
of  the  decedent  Avas  not  sufficient  to  enable  the  creditor 
to  set  aside  a  conveyance  of  real  estate  of  the  decedent; 
that  decision  was  prior  to  the  amendment  of  1889  to 
chapter  314  of  the  Laws  of  1858  (now  section  232  of  the 
Real  Property  Law),  which  has  been  discussed  in  sec- 
tion 1,  ante,  and  which  gives  the  creditor  a  right  in  cer- 
tain conditions  to  bring  the  action  without  obtaining  a 
judgment. 

If  the  court  has  acquired  jurisdiction,  the  judgment 
is  conclusive  evidence  of  the  existence  of  the  debt  in  the 
creditor's  action;  and  it  cannot  be  assailed,  except  for 


JUDGMENT   creditor's   ACTION.  411 

fraud.  {Carpenter  v.  Oshorn,  102  N.  Y.  552;  Decker  v. 
Decker,  108  N.  Y.  128;  Richardson  \.  Trimble,  38  Hun, 
409).  In  O'Connor  v.  Docen  (50  App.  Div.  610)  the 
judgment  creditor's  judguieut  was  entered  on  a  confes- 
sion, and  the  opinion  of  the  learned  appellate  division 
seems  to  indicate  that  such  a,  judgment  would  be  open  to 
question;  none  of  the  cases  as  to  the  conclusive  charac- 
ter of  the  judgment  were  considered  in  this  opinion,  and 
the  remarks  may  be  regarded  as  not  too  carefully  con- 
sidered dicta.  An  apparent  exception  to  the  rule  that 
an  action  of  this  nature  can  only  be  maintained  after  a 
judgment  has  been  recovered  upon  the  debt,  exists 
where  actions  are  brought  under  the  provisions  of  sec- 
tion 7  of  the  Personal  Property  Law,  and  section  232 
of  the  Real  Property  Law,  in  each  of  which  it  is  pro- 
vided that  a  creditor  of  a  deceased  insolvent  debtor, 
having  a  claim  against  the  estate  of  such  debtor  exceed- 
ing in  amount  the  sum  of  one  hundred  dollars  may  main- 
tain the  action  without  hrst  obtaining  a  judgment.  For 
an  application  of  this  provision,  see  Montgomery  v. 
Boyd  (78  App.  Div.  G4).  These  sections  have  been 
already  discussed  in  section  1,  supra. 

To  entitle  the  judgment  creditor  to  maintain  an 
action  as  prescribed  in  section  1871,  the  execution  must 
have  been  issued  as  folloAvs : 

1.  If,  at  the  time  of  the  commencement  of  the  action, 
the  judgment  debtor  is  a  resident  of  the  state,  to  the 
sherift"  of  the  county  where  he  resides. 

2.  If  he  is  not  then  a  resident  of  the  state,  to  the 
sheriff  of  the  county  where  he  has  an  office,  for  the  regu- 
lar transaction  of  business  in  person;  or,  if  he  has  no 
such  office  within  the  state,  to-  the  sheriff  of  the  county 
where  the  judgment-roll  is  hied,  unless  the  execution 
was  issued  out  of  a  court,  other  than  the  court  in  which 
the  judgment  was  rendered;  in  which  case,  it  must  have 
been  issued  to  the  sheriff"  of  the  county  where  a  trans- 
cript of  the  judgment  is  filed.     (Co.  Civ.  Proc.  §  1872). 

Before  the  remedy  at  law  can  be  said  to  be  exhausted, 
it  must  appear  that  the  judgment  which  has  been  re- 
covered cannot  be  collected  in  the  usual  manner;  and, 
therefore,  it  has  been  held  that  in  addition  to  recovering 


412  PRACTICE. 

a  judgment,  the  creditor,  before  he  can  maintain  his 
statutory  action  to  reach  equitable  assets,  must  have 
issued  his  execution  and  procured  it  to  be  returned  un- 
satisfied. {Adee  v.  BujJcr,  81  N.  Y.  349;  Geery  v.  Gccry, 
63  Id.  252).  If  there  are  several  joint  debtors,  usually 
execution  must  have  been  issued  against  all  and  re- 
turned unsatisfied  [Child  v.  Brace,  4  Paige,  309) ;  but  if 
some  and  not  all  have  been  served,  an  execution  must 
have  been  issued  against  the  joint  property  of  all  and 
the  separate  property  of  those  served,  and  returned  un- 
satisfied, and  then  an  action  will  lie  against  the  property 
of  those  served,  and  those  only.  [Field  v.  Chapman, 
13  Abb.  Pr.  320;  14  Id.  133;  15  Id.  434).  Where  a  per- 
son is  liable  as  surety,  it  is  not  necessary  to  exhaust  the 
legal  remedies  against  such  a  person  before  maintain- 
ing the  judgment  creditor's  action  against  the  principal 
debtor.     [Baker  v.  Potts,  73  App.  Div.  29). 

The  fact  that  a  judgment  debtor  is  dead  and  that  his 
estate  is  insolvent  will  not  excuse  a  failure  to  issue  an 
execution  [Adsit  v.  Butler,  87  N.  Y.  585),  except  in  a 
case  specified  in  section  7  of  the  Personal  Property  Law 
and  section  232  of  the  Real  Property  Law,  as  discussed 
above.  Of  course,  an  execution  issued  after  the  death  of 
the  debtor  without  notice  to  his  representatives  and 
without  permission  of  the  surrogate,  is  void  and  will 
not  meet  the  requirement  of  the  issuance  of  an  execution 
and  its  return  unsatisfied.  ( Prentiss  v.  Bowden,  145  N. 
Y^  342).  An  execution  issued  without  leave  after  the 
lapse  of  five  years,  however,  is  not  void  but  only  void- 
able, and  such  an  execution  is  suflScient  to  base  the  judg- 
ment creditor's  action  on,  until  it  is  set  aside.  [Ault- 
nian  &  Taylor  Co.  v.  ^yme,  163  N.  Y.  54).  It  is  not  nec- 
essary that  sixty  days  shall  elapse  after  the  issuing  of 
the  execution,  before  the  action  is  begun;  if  the  execu- 
tion has  been  returned  unsatisfied  in  good  faith,  though 
within  the  sixty  days,  the  action  may  be  begun  at  once. 
[Renaud  v.  O'Brien,  35  N.  Y.  99).  Where,  in  an  action 
against  three  copartners  on  a  joint  obligation,  the  sum- 
mons was  served  upon  two  defendants  only,  judgment 
was  perfected  against  those  two  only,  and  an  execution 
was  issued  against  the  joint  property  of  all  three  defend- 


JUDGMENT   creditor's   ACTION.  413 

ants  and  returned  unsatisfied,  it  was  held  that,  the  judg- 
ment having  been  amended  7iunc  pro  tunc,  so  as  to  make 
it  against  all  defendants,  the  plaintiff  had  sufficiently 
exhausted  its  remedy  at  law  to  entitle  it  to  bring  a  judg- 
ment creditor's  action.  {Produce  Bk.  v.  Morto7i,  67  N. 
Y.  199 ) .  In  other  words,  a  mere  irregularity  in  the  exe- 
cution, does  not  prevent  the  action.  Where  the  judg- 
ment has  been  recovered  in  justice's  court  the  issue  of 
execution  by  the  justice  does  not  exhaust  the  legal  rem- 
edy; an  execution  upon  the  real  estate  could  still  be, 
and  must  be  issued  by  the  county  clerk  after  judgment 
has  been  docketed  in  his  ofiflce.  (Crippen  v.  Hudson, 
13  N.  Y.  161).  If  the  execution  has  been  returned  un- 
satisfied, it  is  no  defense  to  the  creditor's  action  that 
there  was,  in  fact,  property  on  which  the  levy  could  have 
been  made.  {Meyer  v.  Mohr,  1  Robt.  333).  The  rule 
requiring  that  the  remedy  at  law  should  be  exhausted  be- 
fore a  creditor's  action  can  be  maintained  upon  the 
judgment,  forbids  the  commencement  of  such  an  action 
while  the  debtor  is  imprisoned  upon  the  execution ;  and 
if  it  appears  that  he  is  so  imprisoned,  the  complaint 
must  be  dismissed.  {Stillwell  v.  Van  Epps,  1  Paige, 
615). 

Where  an  action  is  brought  in  aid  of  an  execution  or 
to  render  it  effectual,  by  the  removal  of  obstructions 
fraudulently  placed  in  its  way,  which  prevent  the  sale 
of  leviable  property,  it  cannot  be  maintained  unless  exe- 
cution has  been  issued  upon  the  judgment  and  is  out- 
standing at  the  time  the  action  is  commenced.  ( Easton 
Nat.  Bank  v.  Buffalo  Chem.  Wks.,  48  Hun,  557;  Gcerij  v. 
Geery,  63  N.  Y.  252).  An  action  brought  in  aid  of  an 
outstanding  execution  is  not  defeated  as  to  real  estate 
by  the  return  of  an  execution  unsatisfied  pending  the 
action  {Royer  Wheel  Co.  v.  Fielding,  31  Hun,  274;  re- 
versed on  other  grounds,  101  N.  Y.  504)  ;  but  as  to  per- 
sonal property  which,  but  for  the  obstruction,  would  be 
subject  to  the  execution,  a  return  of  the  execution  is 
fatal  to  the  further  prosecution  of  the  action,  because 
the  return  of  the  execution  determines  the  lien  to  enforce 
which  the  action  is  brought.  {Busicell  v.  Lincks,  8 
Daly,  518;  affd.,  sub  nom.  Hasivell  v.  Lincks,  87  N.  Y. 


414  PRACTICE. 

C37).  It  may  be  doubted  whether  this  rule  would  be  ap- 
plied if  a  receiver  had  beeu  appoiuted  aud  propei-ty  had 
been  delivered  to  him  before  the  return  of  the  execution, 
as  in  that  case,  the  plaintiff  would  have  accpiired  a  lien 
by  the  appointment  of  the  receiver. 

If  the  judgment  was  recovered  in  a  court  of  local  jur- 
isdiction and  docketed  in  another  count}^  than  that  of 
the  jurisdiction  of  the  court,  a  creditor's  bill  cannot  be 
sustained  upon  the  return  of  an  execution  to  the  county 
in  which  the  judgment  is  docketed ;  the  execution  must 
have  been  returned  and  tiled  with  the?  clerk  of  the  court 
from  which  it  issued  {Winslow  v.  Pitkin,  1 
Barb.  Ch.  402)  ;  but  if  the  action  is  in  the 
supreme  court  the  fact  that  the  execution  has 
been  returned  to  the  wrong  clerk's  office  is  not 
a  sufficient  irregularity  to  prevent  the  creditor 
from  maintaining  an  action  upon  his  judgment.  {Clark 
V.  Dakin,  2  Barb,  Ch.  36).  It  is  not  necessary  that  the 
judgment  be  docketed  in  the  county  where  the  particu- 
lar action  is  brought  to  set  aside  the  alleged  fraudulent 
conveyance — the  property  being  situated  in  the  county 
where  the  action  is  brought.  (J^Juiic  v.  Dwifjht,  27  N.  Y. 
244;  Lanalian  v.  Caffrey,  40  App.  Div.  124).  The  sub- 
ject of  actions  by  the  sheriff  and  an  attaching  creditor, 
in  aid  of  the  attachment,  etc.,  is  fully  discussed  in  vol. 
I,  at  pages  661-666. 

Where  after  a  fraudulent  transfer  of  property  real 
and  personal,  the  debtor  makes  an  assignment  for  the 
benefit  of  creditors,  a  judgment  creditor  cannot  bring 
an  action  to  set  aside  the  fraudulent  conveyance,  but  the 
right  of  action  is  vested  in  the  assignee.  (Grouse  v. 
Frothingham,  97  N.  Y.  105;  Spring  v.  Short,  90  Id. 
538;  Dorthy  V.  Servis,  46  Hun,  628).  The  case  of 
Taft  V.  Wright  (2  T.  &  C.  614;  affd.,  59  N.  Y. 
656)  and  the  case  of  Leonard  v.  Clinton  (26  Hun, 
288)  upon  that  point  are  overruled.  If  it  appears, 
however,  that  the  assignee  refuses  to  l)ring  the  action,  a 
creditor  may  bring  it,  making  the  assignee  a  party  de- 
fendant, and  alleging  the  demand  upon  him  to  bring  the 
action  and  his  refusal.  (Harrej/  v.  McDonnell,  113  N. 
Y.  526).     And  in  that  case  anything  which  may  be  re- 


JUDGMExNT    creditor's    ACTION.  415 

covered  must  be  paid  to  the  assignee  to  be  distributed 
uuder  the  assignuieut,  although  the  assignment  is  one 
with  preferences,  {^ivift  V.  Hart,  35  Hun,  128).  The 
rule  forbidding  a  creditor  to  bring  the  action  where  an 
assignment  has  been  made  for  the  benefit  of  creditors, 
only  applies  where  the  assignment  is  valid.  It  is  only  in 
such  a  case  that  the  assignee  is  vested  with  the  right  to 
assail  a  fraudulent  transfer  of  property.  If  the  assign- 
ment itself  is  for  any  reason  fraudulent  or  void,  all 
power  of  the  assignee  ceases.  {Loos  v.  WilJdnson,  110 
N.  Y.  195). 

As  has  been  noted  heretofore,  the  action  to  set  aside  a 
fraudulent  conveyance  which  stands  in  the  way  of  an 
execution  or  of  the  lien  of  a  judgment  is  of  purely  equit- 
able cognizance  and  is  in  no  way  dependent  upon  the 
code;  so  section  1879,  prohibiting  the  code  action  to 
reach  equitable  assets  as  against  a  corporation,  does  not 
apply  to  an  action  to  set  aside  a  fraudulent  conveyance 
or  assignment  of  a  corporation  which  prevents  plain- 
tiff's judgment  from  becoming  a  lien.  {Koechl  v.  Leib- 
inger,  etc.,  Co.,  26  App.  Div.  573). 


ARTICLE  11. 

PROCEEDINGS  IN  THE  ACTION. 

SECTION. 

1.  Parties. 

2.  Summons  and  pleadings. 

3.  Lien  of  plaintiff. 

4.  Injunction  and  receiver. 

5.  Discovery. 

6.  Trial  and  judgment. 

Sec.    1.    Parties. 

Upon  this  subject  see  vol.  I,  p.  139,  et  seq.  Any  cred- 
itor having  a  judgment  and  execution  may  bring  an 
action  for  his  own  benefit.  {Wakeman  v.  Grovcr,  4 
Paige,  23).  Other  creditors  are  not  necessary  parties. 
{White's  Bank  of  Buffalo  v.  Farthing,  101  N.  Y.  344). 
A  creditor  whose  execution  at  law  has  been  returned 
unsatisfied  may  bring  an  action  in  his  own  name  and  for 
his  own  benefit;  or  he  may  join  with  other  creditors 


410  PRACTICE. 

standing  in  the  same  situation  with  himself,  or  he  may 
bring  the  action  in  behalf  of  himself  and  all  others,  be- 
ing judgment  creditors,  who  are  in  the  same  situation, 
and  who  nmy  choose  to  come  in  under  the  judgment  and 
contribute  to  the  expenses  of  the  suit.  {Edmeston  V. 
Lyde,  1  Paige,  637;  Hammond  v.  Hudson  R.  I.  &  M.  Co., 
20  Barb.  378).  When  a  creditor  brings  an  action  in  be- 
half of  all  others  similarly  situated,  who  shall  join  in 
the  action,  only  such  creditors  as  were  at  the  time  of  the 
commencement  of  the  action,  in  the  same  situation  as 
the  plaintiff,  that  is,  who  had  judgments  upon  which 
execution  had  been  issued  and  returned  unsatisfied,  are 
entitled  to  share  with  the  original  plaintiff  in  the  pro- 
ceeds of  the  suit.  [Claflin  v.  Gordon,  39  Hun,  54). 
Where  one  is  at  the  same  time  a  creditor  of  an  individ- 
ual and  of  a  partnership  of  which  the  individual  is  one 
of  the  members,  he  may  bring  an  action  to  set  aside  a 
general  assignment  made  by  the  firm,  and  he  may  seek 
in  one  action  to  collect  both  judgments.  {Genesee  Co. 
Bank  v.  Bank  of  Batavia,  43  Hun,  295).  Several  judg- 
ment creditors  may  unite  in  one  action  to  set  aside  a 
fraudulent  conveyance  of  their  debtor;  but  each  must 
have  a  right  of  action  against  the  debtor,  and  the  fraud 
must  affect  all.  (Tabor  v.  Bunnell,  10  Wk.  Dig.  551). 
But  all  judgment  creditors  are  not  necessary  parties  to 
such  an  action,  and  the  court  is  not  required  to  bring 
them  in  on  motion  of  the  defendant.  (White's  Bank  of 
Buffalo  v.  Farthing,  101  N.  Y.  344).  An  assignee  of  a 
judgment  may  bring  an  action,  and  if  the  plaintiff  in 
the  judgment  has  issued  an  execution  before  the  assign- 
ment, the  assignee  need  not  issue  a  new  execution  before 
bringing  the  suit.  (Gleason  v.  Gage,  7  Paige,  121).  If 
the  assignee  does  not  own  the  whole  of  the  judgment, 
the  joint  owner  must  join  as  a  plaintiff  or  be  made  a 
party  defendant.  (Strange  v.  Longley,  3  Barb.  Ch. 
650).  The  judgment  debtor  is  always  a  necessary  party 
defendant  in  these  actions.  (Miller  v.  Hall,  70  N.  Y, 
250;  Huhhell  v.  Merchants'  Natl  Bank,  42  Hun,  200). 
But  if  one  of  several  judgment  debtors  is  insolvent  and 
wholly  destitute  of  property,  it  is  not  necessary  to  make 


JUDGMENT   CKEDITOR'S   ACTION.  417 

him  a  party  to  an  action  brought  to  obtain  satisfaction 
of  the  judgment  out  of  the  equitable  interest  of  choses  in 
action  of  the  other  defendants;  but  the  fact  that  he  is 
thus  destitute  of  property  must  be  distinctly  averred  in 
the  complaint.  {Van  Cleef  v.  Sickles,  5  Paige,  505). 
Where  it  appears  that  one  of  the  judgment  debtors  is  a 
surety,  it  is  not  necessary  that  he  should  be  made  a 
party  defendant,  where  a  fraudulent  transfer  was  made 
by  the  other  debtor.     {Fojd  v.  Moyer,  54  N.  Y.  125). 

If  the  action  was  brought  on  a  joint  judgment  against 
several  defendants,  some  of  whom  were  not  served  with 
process,  all  the  joint  debtors,  although  not  served,  must 
be  made  defendants ;  unless  it  is  alleged  in  the  complaint 
that  the  persons  not  made  parties  w  ere  mere  sureties  for 
the  other  defendants,  or  were  not  legally  or  equitably 
liable  to  contribute  towards  the  satisfaction  of  the  debt, 
or  were  insolvent  or  Avere  out  of  the  jurisdiction  of  the 
court.  {Com.  Bank  of  Lake  Erie  v.  Meach,  7  Paige, 
448 ;  Child  v.  Brace,  4  Paige,  309 ;  Yan  Cleef  v.  Sickles, 
5  Paige,  505).  A  creditor  who  has  recovered  separate 
judgments  against  the  drawer  and  endorser  of  a  note 
may  bring  an  action  upon  the  judgment  against  either 
separately;  and  he  is  not  bound  to  sue  both  together. 
{Austin  V.  Figueira,  7  Paige,  56).  If  the  action  is 
brought  to  set  aside  a  fraudulent  conveyance,  one  of  sev- 
eral judgment  debtors  who  is  not  a  party  to  the  con- 
veyance is  not  a  necessary  party  defendant  in  the  action. 
{Fox  v.  Moyer,  54  N.  Y.  125).  If  the  judgment  debtor 
die  pending  the  action,  his  personal  representatives 
should  be  substituted  as  defendants ;  and  if  the  action  is 
brought  to  enforce  the  lien  upon  real  estate  or  to  set 
aside  a  fraudulent  conveyance  of  real  property,  his  heirs 
or  devisees  should  also  be  made  defendants.  {Living- 
ston V.  Peru  Iron  Co.,  2  Paige,  390;  revd.  on  other 
grounds,  9  Wend.  511).  Where  the  action  was  brought 
to  set  aside  a  conveyance  of  real  property,  if  the  defend- 
ant die  pending  the  action,  and  his  heirs  at  law  are  not 
substituted,  the  plaintiff  Avill  yet  be  entitled  to  judg- 
ment declaring  the  conveyance  void,  and  his  judgment 
a  lien  upon  the  real  property  as  against  the  grantee, 
27 


418  I'lfACTlCK. 

as  if  no  r»»ii\('_v;nire  liad  boon  iiiado  by  tbo  jiid^iiioiit 
dobtor,  with  loavo  to  the  plaiiitill"  to  pi-ocood  by  execu- 
tion a.iiJiinst  the  lands  thus  conveyed.  {Youny  v.  Mccr- 
maius,  ()()  N.  Y.  374).  But  such  a  jndo'inont  of  course 
is  not  binding  upon  the  heirs.  Tiio  fraudulent  grantee 
or  incumbrancer  should  in  all  cases  be  made  a  party  de- 
fendant {Edmcston  V.  Lydc,  1  Paige,  037;  Jhniiinond  v. 
Ji  iitLson  R.  1.  (k  M.  Co.,  20  Barb.  o7.Sj  ;  although  he  is  a 
non-resident.  {Gray  v.  Hchencl-,  4  N.  Y.  400).  But  if 
the  action  is  brought  only  to  roach  a  residuary  interest 
of  the  debtor  in  the  property,  without  affecting  the  in- 
cumbrance, the  incumbrancer  need  not  be  a  party  de- 
fendant. [Edmeston  v.  Lydc,  siipnt).  If  the  action 
is  brought  to  set  aside  more  than  one  fraudulent  assign- 
ment or  incumbrance,  all  the  assignees  and  incum- 
brancers and  all  persons  having  liens  or  conveyances  by 
\\hich  they  claim  different  portions  of  the  debtor's  prop- 
erty must  be  made  parties  defendant,  notwithstanding 
they  receive  the  property  in  separate  and  distinct  par- 
cels, and  at  different  times,  and  each  claims  to  hold  the 
portion  in  his  hands  by  virtue  of  a  separate  lien  or  con- 
veyance. [Morton  v.  Weil,  33  Barb.  30;  Mahler  v. 
^climidt,  43  Hun,  512).  In  an  action  to  set  aside  a 
fraudulent  assignment,  the  assignee  is  a  necessary  party 
defendant.  {Fort  ^tdiurlr  Bank  v.  Leggett,  51  N.  Y''. 
552).  But  he  need  not  be  a  party,  however,  where  it  is 
conceded  that  the  property  which  is  alleged  to  have  been 
fraudulently  assigned  or  transferred  was  not  included 
in  the  assignment  to  him.  {McCreery  v.  Gordon,  38 
Hun,  407).  The  assignee  represents  the  creditors  and 
therefore  they  are  not  necessary  ]>arties  to  the  action  to 
set  aside  the  assignment;  but  they  are  proper  parties, 
if  the  plaintiff  chooses  to  join  them  as  defendants;  or 
if  the  court  sees  fit  to  order  them  to  be  brought  in. 
{Genesee  Go.  Bank  v.  Bank  of  Batavia,  43  Hun,  295). 
Preferred  creditors  are  entitled  to  be  brought  in  as 
parties  dofondant  upon  their  motion.  ( Chandler  v. 
Bowers,  25  Hun,  445).  Where  a  transfer  is  made  to  the 
wife  of  the  judgment  debtor  through  a  third  person, 
such  third  person  is  a  pro])or  party  defendant,  and  he  is 
a  necessary  party  if  he  had  knowledge  of  the  intent  with 


JUDGMENT   creditor's   ACTION.  419 

which,  the  conveyance  was  made.  (Bennett  v.  McGuire, 
5  Laus.  183).  One  who  has  received  the  property  from 
the  judgment  debtor,  but  has  re- transferred  it  before 
the  commencement  of  action,  cannot  be  made  a  defend- 
ant. (Cramer  v.  Blood,  57  Barb.  157,  671;  affd.,  48  N. 
Y.  684). 

Sec.    2.    Summons  and  pleadings. 

The  rules  for  issuing  and  serving  the  summons  are  the 
same  as  in  all  other  civil  actions.  There  are  no  statu- 
tory regulations  with  regard  to  the  form  of  the  com- 
plaint or  the  allegations  which  it  must  contain.  It 
should  state  the  recovery  of  judgment  and  its  docketing, 
and  the  issuing  of  an  execution  and  its  return  unsatis- 
fied if  that  is  necessary.  (Allyn  v.  Thurston,  53  N.  Y. 
622;  Co.  Civ.  Proc.  §  1872).  If  the  action  is  brought  to 
set  a^ide  a  fraudulent  conveyance  or  incumbrance  it 
should  appear  by  the  complaint  that  the  plaintiff  was 
a  creditor  at  the  time  when  such  conveyance  or  incum- 
brance was  made;  and  the  cause  of  action  upon  which 
the  judgment  was  recovered  should  be  stated  and  set  out 
in  the  complaint.  If  the  action  is  to  remove  obstruc- 
tions to  the  satisfaction  of  the  judgment,  the  complaint 
should  allege  that  there  is  real  estate  subject  to  the  judg- 
ment, or  that  there  is  personal  property  which  is  liable 
to  execution.  (McElwain  v.  Millis,  9  Wend.  548).  If 
the  action  involves  real  estate,  it  should  be  described 
specifically  in  the  complaint.  If  fraud  in  fact  is  alleged 
in  the  conveyance,  the  facts  constituting  fraud  should 
be  stated  in  the  complaint.  There  should  be  in  all  cases 
an  allegation  that  the  conveyance  or  obstruction  was 
made  with  intent  to  hinder,  delay  or  defraud  creditors. 
(Murtha  v.  Ciirleij,  90  N.  Y.  372,  376).  In  addition  to 
that,  the  facts  constituting  the  alleged  fraud  should  be 
averred  fully  and  explicitly,  although  it  is  not  necessary 
or  proper  that  the  evidence  of  such  facts  should  be  set 
out  in  the  complaint.  (Butler  v.  Viele,  44  Barb.  166; 
^Veil  v.  Lavenson,  8  N.  Y.  St.  Rep.  834;  Neivman  V.  Gor- 
dell,  43  Barb.  448).  If  the  action  is  brought  to  set  aside 
a  conveyance  which  is  claimed  to  be  fraudulent  on  its 
face,  it  is  not  necessary  to  point  out  in  the  complaint 


420  I'KACTICE. 

the  particular  features  or  clauses  of  the  insti'unient 
which  are  objected  to;  it  is  sullicieut  to  set  out  the  in- 
strument, and  to  allege  that  it  is  made  with  intent  to 
hinder,  delay  or  defi-aud  creditors.  {Jessup  v.  Hidse, 
29  Barb.  539;  revd.  on  other  grounds,  21  N.  Y.  168). 
The  complaint  should  also  state  the  circumstances  un- 
der which  the  instrument  was  made.  {Hustings  v. 
Thurston,  10  Abb.  Pr.  418).  If  the  action  is  to  remove 
obstructions  to  the  enforcement  of  the  judgment  by 
execution,  the  complaint  should  show  that  by  the  re- 
moval of  the  obstruction  the  plaintiff's  judgment  will 
become  a  lien  upon  the  property.  {Spring  v.  Short,  90 
N.  Y.  538) .  If  one  of  the  judgment  debtors  has  not  been 
made  a  party  defendant  because  of  his  insolvency,  that 
fact  should  be  fully  set  forth.  {Van  Cleef  v.  Sickles,  5 
Paige,  505). 

Under  the  revised  statutes  it  was  necessary  to  allege 
that  the  action  was  not  brought  by  collusion,  and  to 
state  that  the  defendant  had  property  to  the  value  of 
one  hundred  dollars.  Those  things  are  no  longer  re- 
quired. [Quick  v.  Keeler,  2  Sand.  231;  Hammond  v. 
Hudson  R.  I.  &  M.  Co.,  20  Barb.  378).  If  the  action  is 
brought  by  one  creditor  in  behalf  of  others,  it  is  suf- 
ficient to  state  in  the  beginning  of  the  complaint  that 
the  plaintiffs  are  suing  "on  behalf  of  themselves  and  of 
all  other  creditors  who  may  be  similarly  situated."  It 
is  not  necessary  to  state  that  fact  in  the  title  to  the 
action.  [Cochran  v.  American  Oj^era  Co.,  20  Abb.  N.  C. 
114).  If  the  action  is  brought  in  that  way,  the  plain- 
tiffs named  in  the  action  are  entitled  to  have  judgment 
for  the  enforcement  of  their  judgments  only,  if  no  other 
creditors  see  fit  to  join  under  the  judgment.  [Green  v. 
Grisiuold,  17  N.  Y.  St.  Rep.  757).  If  the  action  is 
brought  to  set  aside  a  transfer  and  incumbrance,  the 
prayer  for  relief  should  ask  that  such  transfer  be  set 
aside,  and  that  the  property  be  sold  either  hj  the  receiver 
or  by  the  sheriff  on  the  execution.  If  the  action  is 
brought  to  collect  a  judgment  out  of  property  not  liable 
to  execution,  the  relief  asked  for  should  be  that  a  re- 
ceiver be  appointed  to  sell  the  property  and  pay  the 
plaintiff's  judgment;  or  if  the  property  is  a  fund  in  the 


JUDGMENT   creditor's   ACTION.  421 

hands  of  one  of  the  defendants,  that  the  person  holding 
the  fund  should  be  required  to  pay.  If  a  temporary 
injunction  is  desired  it  should  be  prayed  for.  (Vol.  I, 
pp.  422,  544,  Co.  Civ.  Proc.  §  1876).  If  a  receiver  is 
asked  for  pending  the  suit,  that  should  also  be  stated  in 
the  complaint  and  in  the  prayer  for  judgment.  The 
answer  is  governed  by  the  usual  rules  applicable  to  that 
pleading.     (See  vol.  I,  p.  425,  et  seq). 

If  the  complaint  alleges  that  the  transfer  was  made 
to  hinder,  delay  or  defraud  creditors,  it  is  sufficiently 
put  in  issue  by  a  denial  that  it  was  made  with  intent  to 
"  hinder  and  defraud."  {Read  v.  Worthlngton,  9  Bosw\ 
617).  Usually,  however,  if  the  facts  are  set  out  upon 
which  the  fraud  is  based,  and  if  they  are  sufficient  to 
raise  an  inference  of  fraud,  a  mere  denial  of  the  fraudu- 
lent intent  by  the  defendant  is  of  little  weight.  {New- 
man v.  Cordell,  43  Barb.  448).  Such  a  denial  alone 
should  not  be  inserted  in  the  answer,  unless  the  defend- 
ant also  denies  the  facts  which  are  set  up  as  constituting' 
the  fraud,  or  explains  them,  or  unless  the  action  is 
brought  to  set  aside  a  conveyance  as  fraudulent  upon  its 
face ;  in  which  case  the  statement  of  the  complaint  that 
it  was  made  to  hinder,  delay  and  defraud  creditors  is 
sufficiently  met  by  a  denial  of  that  intent  in  the  answer. 
An  answer  cannot  set  up  any  defense  to  the  original 
judgment,  or  the  demand  on  which  the  judgment  Avas  re- 
covered ;  nor  any  irregularity  in  its  entry  or  the  form  of 
the  execution;  nor  that  the  sheriff  refused  to  levy  on 
property,  unless  it  also  alleges  that  the  creditor  col- 
luded with  him  in  his  conduct.  {Storm  v.  Waddell,  2 
Sand.  Ch.  494). 

Sec.    3.    Lien   of  plaintiff. 

If  the  action  is  brought  to  set  aside  a  conveyance  upon 
real  estate  or  to  enforce  the  judgment  and  lien  of  the 
judgment  upon  that  species  of  property,  the  complaint 
and  notice  of  the  pendency  of  the  action  should  be  filed 
at  the  time  of  the  commencement  of  the  action.  (Vol. 
I,  p.  239).  The  notice  of  pendency  should  be  indexed 
in  the  name  of  the  fraudulent  grantor  and  grantee  or 
assignee.     If  the  incumbrance  is  a  mortgage,  it  should 


4l*l'  practice. 

bi'  iii(.k'\cd  in  ihe  iiaiiie  of  tlic  iiiortjijagee.  A  notice  of 
pendency  of  action,  however,  is  not  absolutely  necessary 
to  (iive  a  lien,  Init  only  to  jiive  sncli  notice  of  the  lien 
as  will  bind  snbsecinent  purchasers  in  good  faith. 
Although  no  notice  of  pendency  is  tiled,  a  purchaser 
from  tbe  delen<laut  with  notice  of  the  action  will  take 
subject  to  the  lien  aciiuired  by  its  commencement,  {rat- 
terson  v.  Broicn,  32  N.  Y.  81).  Judgment  creditors  ac- 
((uire  liens  upon  real  estate  in  the  order  in  which  their 
judgments  are  docketed,  and  their  priority  is  not  af- 
fected by  suits  brought  to  set  aside  a  fraudulent  trans- 
fer of  such  real  estate.  (WiUiinson  v.  Faddocl;  57  Ilun, 
191;  attd.  on  op.  below,  125  N.  Y.  718).  If  the  action  is 
brought  to  set  aside  an  obstruction  to  the  sale  of  per- 
sonal property  upon  an  execution,  the  lien  acquired  by 
the  issue  of  the  execution  before  the  commencement  of 
the  action  is  lost  if  the  execution  is  withdrawn  (Bus well 
V.  Lincks,  8  Daly,  518;  affd.,  suh  nom.  JiasiveHv.  TAnchs, 
87  N.  Y.  637),  unless  a  receiver  has  been  appointed  and 
taken  the  property  after  the  commencement  of  the 
action.  (Albanij  Citj/  Bank  v.  Schermerhom,  Clark  Ch. 
297).  Although  the  property  is  subject  to  the  lien  of  a 
creditor  it  may  be  seized  on  execution  by  any  other 
creditor  until  the  order  for  a  receiver  is  made;  but  not 
afterwards.  That  order  is  equivalent  to  an  actual  levy 
on  the  property.  (Storm  v.  MoildcU,  2  Sand.  Ch.  494). 
The  ordinary  injunction  in  the  creditor's  action  will  not 
prevent  another  creditor  from  levying  upon  the  prop- 
erty of  the  defendant,  which  is  the  proper  subject  of  levy 
and  sale  on  execution,  before  the  title  of  such  defendant 
is  equitably  divested  by  the  order  for  the  appointment 
of  a  receiver.  When  that  order  is  made  it  amounts  to 
a  sequestration  of  the  property  by  act  and  operation  of 
law;  and  when  the  receiver  is  subsequently  appointed, 
the  title  to  the  property  vests  by  relation  from  the  date 
of  the  order.  [Davenport  v.  Kelly,  42  N.  Y.  193;  Van 
Alstyne  v.  Cook,  25  N.  Y.  489,  497;  Lansing  v.  Easton, 
7  Paige,  364). 

If  the  action  is  brought  to  enforce  the  judgment 
against  equitable  assets,  the  commencement  of  the 
action  gives  to  the  judgment  creditor  whose  execution 


JUDGMENT   creditor's   ACTION.  423 

has  been  returned  unsatisfied,  an  equitable  lien  upon 
the  things  in  action  of  the  judgment  debtor.  Such  lien 
is  defeasible  onl}-  by  a  discharge  of  the  debt  or  by  the 
successful  defense  of  the  action  in  some  of  the  very  re- 
stricted modes  open  to  the  defendant.  A  discharge  of 
the  debtor  in  bankruptcy  or  insolvency  from  his  debts, 
pending  the  action  does  not  operate  to  discharge  or  im- 
pair the  lien  acquired  by  its  commencement.  {Storm 
V.  Waddell,  2  Sand.  Ch.  494;  Tolles  v.  Wood,  99  N.  Y. 
616).  The  lieu  continues  after  the  death  of  the  judg- 
ment debtor,  and  his  personal  representatives  take  the 
property  charged  with  the  lien.  {Broion  v.  Nichols,  42 
N.  Y.  26).  The  cases  of  Sylvester  v.  Reed  (3  Edw.  Ch. 
296),  and  Matthews  v.  Niclson  (Id.  346),  in  that  respect 
are  overruled.  The  lien  so  acquired  extends  to  rents 
and  profits  of  the  real  estate  of  the  judgment  debtor 
which  accrued  during  the  fifteen  months  allowed  to  him 
for  redemption  after  sale  upon  execution.  {Farnham 
v.  Camjjhell,  10  Paige,  598;  Nat.  Union  Bk.  v.  Riger,  38 
App.  Div.  123,  125;  but  see  First  Nat.  Bk.  of  Canan- 
daigiia  v.  Martin,  49  Hun,  571,  574,  semble).  It  also 
extends  to  the  accrued  and  unexpended  surplus  of  the 
income  of  a  trust  fund  payable  to  the  judgment  debtor, 
for  his  support,  or  the  surplus  which  subsequently  arises 
upon  the  fund.  {Tolles  v.  Wood,  99  N.  Y.  616).  The 
appointment  of  a  receiver  is  not  necessary  to  perfect 
this  lien.  {Broicn  v.  Nichols,  supra).  The  lien  is  ac- 
quired by  the  service  of  process  {Boynton  v.  Raioson, 
Clark  Ch.  584)  ;  and  it  relates  back  to  that  time  in  all 
subsequent  proceedings.  {Patterson  v.  Brown,  32  N.  Y. 
81).  If  supplementary  proceedings  which  have  been 
begun,  are  abandoned  and  the  creditor's  action  is  then 
begun  upon  the  same  judgment,  the  equitable  lien  of  the 
action  does  not  relate  back  to  the  commencement  of  the 
suplementary  proceedings.  {Edmonston  v.  McLoud, 
16  N.  Y.  543*;  Ballon  v.  Boland,  14  Hun,  355). 

The  lien  does  not  arise  by  the  return  of  execution  un- 
satisfied; Imt  only  by  the;  commencement  of  the  credi- 
tor's actiQu.  {Edmeston  v.  Lyde,  1  Paige,  637).  The 
creditor  who  first  begins  his  action  acquires  the  first 
lien,  without  regard  to  the  time  when  the  execution  was 


424  PRACTICE. 

returned.  {Corning  v.  White,  2  Paiue,  567;  Manderille 
V.  Campbell,  45  App.  ])iv.  512 j.  All  the  t\{\o  of  the 
judpiient  debtor  to  the  property  involved  in  the  action, 
is  subject  to  the  lieu,  and  any  subsequent  assij^nee  takes 
title  inferior  to  the  lien  and  subject  to  it.  {Utica  Ins. 
Co.  V.  Foiccr,  3  Paige,  365).  The  subsequent  purchaser 
from  the  debtor  takes  subject  to  the  lien  if  he  have 
notice  of  the  pendency  of  the  action,  and  probably 
whether  he  have  notice  or  not.  {Roberts  v.  A.  &  W.  S. 
R.  R.  Co.,  25  Barb.  662;  Jeffres  v.  Cochrane,  47  Barb. 
557;  affd.,  48  N.  Y.  671).  If  the  property  involved  in 
the  action  is  a  debtor's  equitable  interest  in  real  estate, 
a  purchaser  of  it  from  the  debtor  with  notice  of  the  pen- 
dency of  the  action,  takes  subject  to  the  right  of  the 
plaintiff,  although  no  notice  of  the  pendency  of  the 
action  was  filed.  {Patterson  v.  Broicn,  32  N.  Y.  81). 
But  although  the  doctrine  of  constructive  notice  of  the 
pendency  of  action  is  applied  to  this  class  of  cases,  yet 
that  doctrine  is  exceedingly  harsh,  and  one  that  the 
courts  are  not  willing  to  extend.  {Holbrook  v.  N.  J. 
Zinc  Co.,  57  N.  Y.  616).  And  they  will  struggle  in  all 
cases  to  relieve  a  purchaser  in  good  faith  without  actual 
notice,  from  the  consequences  of  the  doctrine.  It  is  bet- 
ter, therefore,  in  all  cases  where  it  is  possible,  to  procure 
the  appointment  of  a  receiver,  who  will  take  the  prop- 
erty and  hold  it.  (See  section  4,  infra).  As  we  have 
seen,  in  cases  where  the  action  is  brought  to  subject  the 
leviable  personal  property  to  the  lien  of  the  judgment, 
a  receiver  is  necessary  to  perfect  the  lien.  For  the 
reasons  stated  above,  it  is  bietter  to  procure  the  appoint- 
ment of  a  receiver  in  every  case;  as  it  may  save  a  serious 
question  as  to  the  rights  of  a  subsequent  purchaser. 

Sec.    4.    Injunction   and   receiver. 

A  temporary  injunction,  restraining  the  transfer  to 
any  person,  or  the  payment  or  delivery  to  the  judgment 
debtor,  of  any  money,  thing  in  action,  or  other  property 
or  interest,  which  may,  by  the  provisions  of-*his  article 
(1  of  title  4  of  chapter  XV  of  the  code)  be  applied  to 
the  satisfaction  of  the  sum  due  to  the  i)lain- 
tiff,  mav  be  granted  in  the  action.     The  injunction,  and 


JUDGMENT   creditor's   ACTION.  423 

the  proceedings  before  and  after  it  is  granted,  are  gov- 
erned by  the  provisions  of  article  1  of  title  2  of  chapter 
VII  of  the  code;  for  which  purpose,  the  injunction  is 
deemed  to  be  one  of  those  specified  in  section  603  of  the 
code.      (Co.  Civ.  Proc.  §  1876). 

The  rules  with  regard  to  an  injunction  of  the  kind 
described  in  this  section,  are  found  in  vol.  I,  pp.  422, 
544.  When  the  injunction  will  be  gi'anted,  and  the 
proof  which  is  necessary  to  entitle  the  plaintiff  to  it,  are 
found  stated  in  vol.  I,  p.  581,  et  seq. 

An  injunction  will  not  be  granted  in  these  actions 
until  the  remedy  at  law  has  been  exhausted.  {Brooks 
V.  Stone,  11  Abb.  Pr.  220).  A  return  of  execution  un- 
satisfied raises  the  presumption  that  the  property  of  the 
debtor  will  be  misapplied,  and  will  entitle  the  plaintiff 
to  an  injunction;  and  where  it  appears  that  the  execu- 
tion has  been  returned,  and  that  the  debtor  is  receiving 
an  income  of  property  which  he  has  assigned,  it  is  good 
reason  that  an  injunction  should  be  granted.  {Bank  of 
Montreal  v.  Gleason,  16  N.  Y.  St.  Rep.  768).  In  an 
action  to  set  aside  a  judgment  fraudulently  confessed, 
on  which  the  property  of  the  debtor  has  been  sold,  the 
injunction  may  require  the  deposit  of  the  proceeds  of  the 
sales  to  the  amount  of  the  plaintiff's  judgment  to  await 
the  result  of  the  action.  {Keller  v.  Payne,  22  Abb.  N.  C. 
352;  s.  c.  16  N.  Y.  St.  Rep.  245).  Unless  there  is  a 
special  clause  to  that  effect,  the  injunction  will  not  pre- 
vent the  defendant  from  confessing  judgment  in  favor 
of  another  hona  fide  creditor;  nor  will  it  prevent  any 
other  judgment  creditor  from  levying  upon  property 
which  is  the  proper  subject  of  a  levy  and  sale  on  execu- 
tion, before  the  appointment  of  a  receiver.  {Lansing  v. 
J'Jastou,  7  Paige,  364).  Any  active  interference,  how- 
ever, with  the  property  by  the  defendant  or  his  agent 
for  the  purpose  of  having  the  legal  title  conveyed  or 
transferred  to  another,  or  which  tends  to  deprive  the 
jjlaintiff  of  the  equitable  lien  he  has  acquired  by  the 
commencement  of  his  action,  is  a  violation  of  the  letter 
as  Avell  as  of  the  spirit  of  the  injunction.  {Lansing  v. 
Easton,  supra).  A  creditor's  action  does  not  reach 
after-acquired  property  and  for  that  reason  it  is  no  vio- 


420  PRACTICE. 

lalioH  (»f  the  iujunetioii  to  assi<j;ii  such  property.  {Ire- 
linul  V.  i<iiiilh,  1  Barb.  419).  As  to  the  proceediuj^s  nec- 
essary to  vacate  such  an  injunction  see  vol.  I,  p.  GOG. 
It  will  not  he  vacated  sinii)ly  because  of  the  denial  of  the 
defendant  that  he  has  any  property  or  choses  in  action 
or  any  interest  in  property.  {New  v.  Bame,  10  Paige, 
502). 

The  court  may,  b}'  an  onler,  or  by  the  interlocutory  or 
final  judgment  in  the  action,  appoint  a  receiver  of  any 
or  all  of  the  property  of  the  judgment  debtor;  and  may 
direct  the  judgment  debtor,  or  any  other  defendant  in 
the  action,  to  convey  or  deliver  to  the  receiver,  as  justice 
requires  any  property,  real  or  personal,  book,  voucher, 
or  other  paper,  or  to  execute  any  instrument,  which  it 
deems  necessary,  for  perfecting  or  assuring  the  re- 
ceiver's title  or  possession.     (Co.  Civ.  Proc.  §  1877). 

A  receiver  will  not  be  appointed  where  it  appears 
from  the  complaint  that  the  plaintiff's  remedy  at  law 
has  not  been  exhausted,  (^^tarr  v.  RatJthone,  1  Barb. 
70).  If  the  action  is  brought  to  reach  property  leviable 
upon  execution  and  to  remove  an  obstruction,  a  receiver 
is  necessary  to  retain  the  lien  acquired  b}'  the  commence- 
ment of  the  action,  as  we  have  already  seen.  (Daven- 
port V.  Kelly,  42  N.  Y.  193).  In  all  cases  it  is  advisable 
to  procure  the  appointment  of  a  receiver  if  possible,  for 
the  reasons  given  in  section  three  (sicpra).  Where  the 
complaint  show^s  that  the  plaintiff  has  exhausted  his 
remedy  at  law  it  is  almost  a  matter  of  course  to  appoint 
a  receiver  to  reach  the  equitable  assets  and  property  of 
the  judgment  debtor.  [Lent  v.  McQueen,  15  How.  Pr. 
313).  Whenever  an  injunction  has  been  granted  re- 
straining the  judgment  debtor  from  interfering  with  the 
collection  of  his  debts  and  disposition  of  his  property, 
it  is  the  duty  of  the  plaintiff  who  has  procured  such  in- 
junction to  apply  for  a  receiver.  [Bloodgood  v.  Clark, 
4  Paige,  574;  Lent  V.  McQueen,  supra).  Upon  such  an 
application  the  court  cannot  go  behind  the  judgment 
and  execution  to  consider  its  merit  {Lent  v.  McQueen, 
supra)  ;  nor  is  it  any  answer  to  the  application  for  the 
receiver  in  such  a  case  that  there  may  not  be  any  prop- 


JUDGMENT   creditor's   ACTION.  427 

erty  to  protect;  as  the  plaintiff  proceeds  at  the  peril  of 
costs,  if  there  is  uo  property;  aud  the  receiver  cannot  be 
an  injury  to  the  defendant.  (Wehh  v.  Overmann,  6  Abb. 
Pr.  92;  cases  cited  on  p.  93).  Where  the  action  is 
brought  to  reach  property  claimed  by  the  judgment 
debtor,  but  which  at  the  commencement  of  the  action 
appeared  to  be  the  property  of  his  wife,  and  there  is  a 
reasonable  ground  to  apprehend  that  before  the  action 
could  be  tried,  the  property  would  be  removed  beyond 
the  jurisdiction  of  the  court  or  lost,  it  is  good  ground  for 
the  appointment  of  a  receiver.  {State  Haul:  of  t^ijra- 
ciise  V.  GUI,  23  Hun,  410).  Where  it  is  sought  to  have 
a  receiver  of  the  rents  aud  profits  of  lands  fraudulently 
conveyed,  the  complaint  should  ask  for  such  a  receiver- 
ship and  contain  appropriate  averments  therefor.  (Nat. 
Union  Biz.  v.  Riger,  38  App.  Div.  123).  The  fact  that  a 
receiver  of  the  judgment  debtor's  property  has  already 
been  appointed  in  supplementary  proceedings,  is  no 
answer  to  an  application  for  a  receiver  in  a  creditor's 
action ;  nor  is  it  necessary  that  the  receiver  in  the  action 
should  be  the  same  person  who  was  appointed  receiver 
in  supplementary  proceedings.  (State  Bank  of  Syra- 
cuse v.  Gill;,  supra).  A  receiver  will  be  appointed, 
although  the  defendant  died  after  the  commencement 
of  the  action.  (Brown  v.  Nichols,  42  N.  Y.  26).  Syl- 
vester v.  Reed  (3  Edw.  Ch.  296)  upon  this  point  is  over- 
ruled. As  to  the  manner  of  the  appointment  of  a  re- 
ceiver and  the  proceedings  to  obtain  possession  of  the 
property,  see  vol.  I,  p.  697,  et  seq.  When  appointed,  the 
title  of  the  receiver  relates  back  to  the  commencement 
of  the  action.  ( Clark  v.  Brockivay,  1  Abb.  Ct.  App.  Dec. 
351). 

Sec.    5.    Discovery. 

A  discovery  may  be  compelled  in  a  judgment  credi- 
tor's action,  by  directing  the  person,  required  to  make 
it,  to  appear  before  the  court,  or  a  referee  appointed  by 
it,  and  to  be  examined  under  oath,  concering  the  mat- 
ters pertaining  to  the  discovery.  But  this  section  does 
not  affect  the  right  of  the  plaintiff,  to  cause  the  deposi- 


428  PRACTICE. 

tion  of  a  defendant  to  be  taken,  as  prescribed  in  article 
1  of  title  3  of  chapter  IX  of  the  code.  (Co.  Civ.  Proc. 
§1878). 

Article  1  of  title  3  of  chapter  IX  of  the  code  contains 
the  provisions  for  taking  depositions  before  trial.  See 
on  that  subject,  vol.  II,  p.  1,  ct  seq. 

Proceedings  to  obtain  a  discovery  permitted  by  this 
section  are  very  rarely -resorted  to.  When  the  discovery 
is  sought  an  application  to  the  court  should  be  made  for 
it,  on  motion  at  special  term.  The  affidavit  upon  which 
the  motion  is  made  should  show^  the  propriety  of  it,  and 
the  reason  why  it  is  asked.  Whether  or  not  it  shall  be 
gi^anted,  seems  to  be  discretionary  with  the  court.  The 
rules  for  the  examination  are  probably  the  same  as  for 
the  examination  of  a  party  before  trial;  and  will  be 
found  stated  at  vol.  II,  p.  1,  ct  seq. 

Sec.    6.    Trial  and  judgment. 

Proceedings  upon  default  in  the  action  are  the  same 
as  those  in  any  other  action.  Judgment  can  only  be 
taken  on  application  to  the  court.  ( See  vol.  II,  p.  714, 
et  seq.).  Trial  must  be  by  the  court,  at  special  term. 
(See  vol.  II,  p.  212,  et  seq.).  The  action  is  brought  to 
trial  like  any  other  case  (vol.  II,  pp.  233,  258),  and  the 
trial  is  precisely  like  that  of  any  other  equity  cause. 
(See  vol.  II,  p.  386). 

The  final  judgment  in  the  action  must  direct  and  pro- 
vide for  the  satisfaction  of  the  sum  due  to  the  plaintiff, 
out  of  any  money,  thing  in  action,  or  other  personal 
property,  belonging  to,  or  due  to  the  judgment  debtor, 
or  held  in  trust  for  him,  which  is  discovered  in  the 
action ;  whether  the  same  might  or  might  not  have  been 
originally  taken,  by  virtue  of  an  execution.  (Co.  Civ. 
Proc.  §  1873). 

If  there  is  only  one  plaintiff  and  the  action  is  brought 
to  remove  an  obstruction  to  the  sale  of  real  estate  on 
execution,  the  usual  judgment  is  that  the  incumbrance 
be  set  aside  as  to  the  plaintiff,  and  that  a  sale  upon  the 
execution  be  had  as  though  there  Avere  no  incumbrance. 
The  same  judgment  is  proper  in  an  action  to  set  aside  a 
fraudulent  conveyance.     (Van  Wyck  v.  Baker,  10  Hun, 


JUDGMENT   creditor's   ACTION.  429 

39;  Cole  v.  Tyler,  65  N.  Y.  73;  Belgard  v.  McLaughlin, 
9  N.  Y.  St.  Rep.  38).  If  it  appears  that  the  vendee  in  a 
fraudulent  conversance  was  a  purchaser  for  a  valuable 
consideration,  the  judgment  should  not  set  aside  and 
annul  the  conveyance  absolutely,  but  only  as  against 
the  plaintiff,  and  direct  that  the  property  be  sold  and 
the  plaintiff's  judgment  be  paid  out  of  the  proceeds. 
{Orr  v.  Gilmore,  7  Lans.  345).  The  judgment,  how- 
ever, may  appoint  a  receiver  of  the  property  and  require 
the  defendant  to  convey  to  the  receiver  and  authorize 
the  receiver  to  sell  the  property  and  apply  the  same  to 
the  discharge  of  the  plaintiff's  claim.  {Union  Nat. 
Bank  v.  Warner,  12  Hun,  306;  Chautauqua  Co.  Bank  v. 
Risley,  19  N.  Y.  369 ;  Cole  v.  Tyler,  supra;  Co.  Civ.  Proc. 
§  1877). 

It  is  better  in  all  cases  where  it  is  practicable  to  direct 
the  property  to  be  sold  on  execution.  The  obvious  effect 
of  appointing  a  receiver  to  sell  the  property  and  direct- 
ing a  conveyance  to  him  is,  in  the  first  place  to  cut  off 
the  right  of  the  judgment  debtor  to  redeem ;  that  right  is 
secured  to  him  as  the  judgment  debtor  by  the  terms  of 
the  statute,  notwithstanding  he  may  have  parted  w^ith 
all  his  interest  in  the  land  by  a  prior  fraudulent  or  a 
subsequent  honest  conveyance.  The  more  material  con- 
sequence is  that  other  creditors  by  judgments  or  decrees 
whose  debts  are  also  liens  if  the  debtor's  prior  convey- 
ance is  tainted  with  fraud,  are  also  deprived  of  the 
right  secured  by  law  to  improve  their  condition  by 
acquiring  an  interest  and  affecting  the  situation  of  the 
purchaser  at  the  sheriff's  sale.  The  appropriate  object 
of  the  action  so  far  as  it  relates  to  lands  in  which  the 
debtor  has  a  legal  estate,  subject  to  the  statutory  lien  of 
judgments  against  him,  is  full}'  obtained  when  a  judg- 
ment is  pronounced  clearing  away  the  fraudulent  ob- 
struction to  the  ordinary  legal  remedy  b}^  execution.  If 
the  court,  however,  proceeds  further  and  directs,  first  an 
assignment  by  the  debtor  and  a  receiver  and  then  a  sale 
by  the  latter  for  the  purpose  of  satisfying  the  debt  which 
is  the  foundation  of  the  suit,  the  purchaser  will  un- 
doubtedly acquire  a  title.  The  fraudulent  conveyance 
being  annulled  by  the  judgment,  the  receiver  under  the 


430  PUACTICE. 

assignment  to  him  takes  the  title  which  he  can  convey 
to  a  purchaser;  but  the  title  of  the  receiver  and  of  a  pur- 
chaser from  him  rests  upon  the  debtor's  own  couvey- 
ance  made  under  the  direction  of  the  court,  and  has  no 
relation  to  the  judgment.  When  the  creditor  takes  this 
course  instead  of  falling  back  upon  his  legal  remedy,  he 
abandons  the  lieu  of  his  judgment,  and  seeks  satis- 
faction of  his  debt  out  of  the  debtor's  property  gener- 
ally. (Chautauqua  Co.  Bank  v.  Rislcy,  19  N.  Y.  309). 
The  purchaser  under  the  receiver's  sale  takes  his  title 
as  of  the  time  of  the  debtor's  conveyance  to  the  receiver, 
subject  to  the  liens  of  prior  judgments.  {White's  Bank 
of  Buffalo  v.  Farthing,  101  N.  Y.  341).  If  an  action  is 
brought  to  assert  a  lien  upon  the  real  and  personal 
property,  the  judgment  should  direct  that  the  personal 
property  shall  be  first  applied  to  the  payment  of  the 
judgment  upon  which  the  action  is  brought.  [Yrooman 
V.  Cloio,  25  Wk.  Dig.  139).  Of  course,  where  a  judg- 
ment creditor  is  successful  in  his  attack  on  a  fraudulent 
assignment  for  the  benefit  of  creditors,  the  assignment 
is  set  aside  as  to  him  only,  and  not  as  between  the 
assignor  and  assignee  and  the  creditors  not  attacking 
the  assignment.  {Lees  v.  Haijden,  78  Hun,  370).  So, 
where  a  conveyance  is  declared  void  as  to  the  plaintiff, 
and  the  property  is  directed  to  be  sold,  the  judgment 
should  direct  the  surplus  to  be  paid  to  the  grantee;  it 
is  erroneous  to  direct  it  to  be  paid  to  the  county  treas- 
urer and  held  subject  to  the  further  direction  of  the 
court,  if  there  is  but  one  judgment  to  be  satisfied,  or 
unless  the  action  is  brought  by  one  creditor  for  the 
benefit  of  all  who  choose  to  come  in.  {Wood  v.  Hunt, 
38  Barb.  302;  Welch  v.  Tohias,  7  N.  Y.  St.  Rep.  297). 
Where  several  conveyances  are  attacked  as  being 
fraudulent,  and  they  are  held  to  be  fraudulent,  the 
court  is  not  bound  to  consider  the  question  as  to  how 
far  the  effect  of  the  judgment  shall  be  limited  by  the 
amount  of  the  plaintiff's  claims,  but  has  the  power  to 
set  them  all  aside  as  to  the  plaintiff.  {Metcalf  v.  Moses, 
161  N.  Y.  587).  Whore  the  action  is  brought  by  a 
creditor  of  an  insolvent  deceased  (as  allowed  by  section 
7  of  the  Personal  Property  Law  and  section  232  of  the 


jii)(;mi:xt  creditors  action.  431 

Keal  Property  Law),  the  action  is  really  representative, 
and  the  creditor  stands  in  the  place  of  the  executor,  so 
the  judgment  should  not  provide  for  a  payment  to  the 
plaintiff  but  for  a  pro  rata  distribution  among  all  the 
creditors.       {Campbell  v.  Eclland,  55  App.  Div.  95). 

Where  several  creditors  join  in  the  action,  or  where 
the  action  is  brought  by  one  for  the  benefit  of  all,  it  is 
proper  practice  to  appoint  a  receiver  and  direct  the 
defendant  to  convey  to  him,  and  to  authorize  him  to  sell 
the  real  estate  and  pay  the  i^roceeds  upon  the  several 
judgments  or  claims  in  their  proper  order.  (Shand  v. 
Hanleij,  71  N.  Y.  319;  Belgard  v.  McLaughlin,  9  N.  Y. 
St.  Rep.  38).  The  defendant  should  be  directed  to 
convey  to  the  receiver.  In  such  case  it  is  usual  to 
appoint  a  referee  before  whom  all  creditors  who  choose 
to  come  in  ma^^  prove  their  claims,  and  their  right  to 
join  in  the  judgment.  Only  such  creditors  will  be  en- 
titled to  come  in,  as  have  exhausted  their  remedy  at  law 
before  the  commencement  of  the  creditor's  action. 
(Glaflm  V.  Go7'don,  39  Hun,  54).  If  it  is  necessary  to 
take  an  account  or  to  do  anything  to  enable  the  ennrt  to 
ascertain  the  amount  of  the  fund  in  the  hands  of  any  of 
the  defendants,  or  the  amount  which  should  be  paid  to 
the  plaintiff,  a  referee  may  be  appointed  for  that  pur- 
pose. The  proceedings  before  a  referee  so  appointed 
are  found  in  vol.  II,  pp.  410,  428  and  432,  and  subse- 
quent pages. 

If  the  purchaser  has  bought  in  good  faith  and  paid 
an  adequate  consideration,  his  title  is  good  and  cannot 
be  successfully  assailed  {Dorr  v.  Beck,  76  Hun,  540; 
affd.  on  op.  below,  149  N.  Y.  581)  ;  if,  however,  the 
grantor  had  a  fraudulent  intent,  and  if  it  appears  that 
the  grantee  is  innocent  of  fraudulent  intention,  and 
that  the  conveyance  is  made  for  a  valuable  considera- 
tion, but  that  the  consideration  was  so  inadequate  that 
it  would  be  inequitable  to  allow  the  deed  to  stand  as  a 
conveyance,  the  court  w  ill  not  set  aside  the  conveyance 
altogether,  but  will  permit  it  to  stand  as  security  for  the 
sum  actually  paid.  {Boyd  v.  Dunlap,  1  Johns.  Ch. 
478;  Van  Wyck  V.  Baker,  16  Hun,  168;  Clift  v.  3Ioses, 
75  Hun,  517;  affd.  on  op.  below,  151  N.  Y.  628).      If, 


432  PRACTICE. 

however,  it  appears  that  the  grantee  knowingly  par- 
ticipated in  the  fraud,  he  will  not  be  entitled  to  pro- 
tection to  any  extent,  although  he  may  have  paid  a 
valuable  consideration  for  the  transfer.  [Davis  v.  Leo- 
pold,  87  N.  Y.  620).  A  party  bargaining  with  the 
debtor  with  fraudulent  intent  does  it  at  the  peril  of  hav- 
ing that  which  he  receives  taken  from  him  by  creditors 
whom  he  is  attempting  to  defraud,  without  having  any 
remedy  to  recover  what  he  parts  with  in  carrying  out 
his  bargain.  The  law  in  such  a  case  will  leave  him  in 
the  snare  his  own  devices  have  laid.  {Brlggs  V.  Merrill, 
58  Barb.  389;  Union  Natl.  Bank  v.  Marner,  12  Hun, 
306).  In  Swift  V.  Hart  (35  Hun,  128),  however,  the 
court  disregarded  the  limitation  laid  down  in  the  pre- 
ceding cases,  and  protected  the  assignee,  although  it 
was  conceded  that  he  not  only  was  a  party  to  the  fraudu- 
lent intent,  but  devised  it  for  the  purpose  of  defrauding 
creditors.  Where,  however,  it  appears  that,  prior  to 
the  fraudulent  transfer,  the  property  has  been  pledged 
to  secure  a  valid  debt  to  a  party  not  connected  with  the 
fraud,  and  that  the  fraudulent  transferee  received  only 
the  surplus  of  the  avails  of  the  property  after  the  de- 
duction of  the  debt,  the  creditors  can  recover  of  such 
fraudulent  transferee  only  the  value  of  such  surplus. 
{Hamilton  Nat.  Bk.  v.  Halsted,  131  N.  Y.  520).  If  an 
equitable  cause  of  action  is  not  established  the  judge 
must  dismiss  the  complaint;  the  court  cannot  order  a 
personal  judgment  against  the  judgment  debtor.  {Sage 
v.  Moshcr,  28  Barb.  287;  Claflin  v.  Maguire,  45  N.  Y. 
Super.  Ct.  Rep.  521).  Where  the  conveyance  has  been 
set  aside  the  fraudulent  grantee  or  assignee  may  be 
compelled  to  account  for  and  pay  over  rents  and  profits 
or  other  moneys  received  by  him  under  his  transfer 
{Loos  V.  Wilkinson,  110  'S.  Y.  195)  ;  unless  it  appears 
that  he  has  in  good  faith  applied  them  according  to  the 
terms  of  the  trust  before  the  action  was  commenced. 
{Collumh  V.  Read,  24  N.  Y.  505).  If  the  action  is 
brought  to  reach  choses  in  action,  or  the  distributive 
share  of  the  debtor  in  the  estate  of  an  ancestor,  the 
proper  judgment  is  to  direct  the  appointment  of  a  re- 


JUDGMENT   creditor's   ACTION.  433 

ceiver,  and  to  direct  the  defendant  to  assign  such  prop- 
erty to  the  receiver,  and  requiring  the  receiver  to  apply 
the  proceeds  to  the  payment  of  the  plaintiff's  debt  and 
costs.  {Mc Arthur  v.  Hoysradt,  11  Paige,  495).  Where 
the  action  is  brought  to  reach  the  surplus  income  of  a 
fund  of  which  the  debtor  is  the  beneficiary,  the  judg- 
ment may  fix  the  amount  proper  for  the  support  of  the 
debtor,  or  maj^  send  it  to  a  referee  to  ascertain  that  fact ; 
and  may  direct  that  the  surplus  may  be  paid  to  the 
plaintiff  until  his  judgment  is  satisfied ;  or  may  appoint 
a  receiver  and  direct  the  surplus  to  be  paid  to  him  from 
time  to  time,  and  require  him  to  pay  the  judgment. 
{Williams  v.  Thorn,  70  N.  Y.  270). 

The  final  judgment  in  the  action  must  also  direct  and 
provide  for  the  satisfaction  of  the  sum  due  to  the  plain- 
tiff, out  of  the  interest,  if  any,  of  the  judgment  debtor, 
in  a  contract  for  the  purchase  of  real  property  by  him ; 
either  by  selling  the  interest,  or  by  transferring  it  to  the 
judgment  creditor,  in  such  a  manner  and  upon  such 
terms,  as  the  court  deems  most  conducive  to  the  inter- 
ests of  the  parties.  Where  the  person,  bound  to  per- 
form the  contract  to  the  judgment  debtor,  is  a  defend- 
ant in  the  action,  the  final  judgment  may  direct  a 
specific  performance  of  the  contract  to  the  judgment 
creditor,  or,  where  the  interest  in  the  contract  is 
directed  to  be  sold,  to  the  purchaser.  (Co.  Civ.  Proc. 
§  1874). 

In  a  case  specified  in  section  1874  the  value  of  the 
interest  of  the  judgment  debtor  holding  the  contract 
must  be  ascertained,  under  the  direction  of  the  court; 
and  so  much  thereof  as  is  necessary  must  be  applied 
to  the  payment  of  the  sum  due  to  the  plaintiff,  and  the 
residue,  if  any,  to  the  benefit  of  the  judgment  debtor. 
(Co.  Civ.  Proc.  §  1875). 

The  judgment  in  an  action  brought  under  section  7 
of  the  personal  property  law  by  the  creditor  of  a  de- 
ceased insolvent  debtor,  may  provide  for  the  sale  of  the 
property  involved,  when  a  conveyance  or  transfer 
thereof  is  set  aside,  and  that  the  proceeds  thereof  be 
brought  into  court  or  paid  into  the  proper  surrogate's 
28 


434  PRACTICE. 

court  to  l>e  adiiiiiiistered  aocoi'dinii-  to  law.  (The  Per- 
sonal Pi'opeitv  Law,  §  7).  The  same  provision  is  found 
in  section  '2:V2  of  the  Real  Property  Law.  Of  course, 
sueli  creditors  as  were  not  made  pai-ties  to  an  action  of 
this  kind  and  who  never  took  anv  position  in  hostility 
to  the  alleged  fraudulent  assignment  for  benefit  of  cred- 
itors, are  not  bound  by  the  juilgment  in  the  action  and 
may  proceed  under  the  assignuient.  {Matter  of  Thoe- 
sen,  62  App.  Div.  87).  As  to  what  constitutes  an  elec- 
tion of  remedies,  see  Matter  of  Garvcr  (176  N.  Y.  386). 
Costs  in  the  actions  discussed  in  this  chapter  are  in 
the  discretion  of  the  court.      See  vol.  II,  p.  559,  et  seq. 


CHAPTER  LIX. 

ACTIONS   BY    OR   AGAINST   PARTICULAR   PARTIES. 


ARTICLE  I.... Action  by  or  against  unincorporated  association. 
ARTICLE  II . .  .  Taxpayer's  action  to  prevent  waste. 
ARTICLE  III.  .Action  against  or  between  joint  debtors. 
ARTICLE  IV  .  .Compromise  by  joint  debtors. 


ARTICLE  I. 

ACTION   BY    OR   AGAINST   UNINCORPORATED    ASSOCIATION. 

SECTION. 

1.  By  or  against  whom  brought. 

2.  Judgment  in  such  action. 

3.  Action  against  member,  after  execution  against  the  association 

returned  unsatisfied. 

Sec.    1.    By  or  against  fvlioin  brought. 

An  action  or  special  proceeding  may  be  maintained, 
by  the  president  or  treasurer  of  an  unincorporated  as- 
sociation, consisting  of  seven  or  more  persons,  to  re- 
cover any  property,  or  upon  any  cause  of  action,  for  or 
upon  which  all  the  associates  may  maintain  such  an 
action  or  special  proceeding,  by  reason  of  their  interest 
or  ownership  therein,  either  jointly  or  in  common.  An 
action  may  likewise  be  maintained  by  such  president 
or  treasurer  to  recover  from  one  or  more  members  of 
such  association  his  or  their  proportionate  share  of  any 
moneys  lawfully  expended  by  such  association  for  the 
benefit  of  such  associates,  or  to  enforce  any  lawful  claim 
of  such  association  against  such  member  or  members. 
An  action  or  special  proceeding  may  be  maintained, 
against  the  president  or  treasurer  of  such  an  associa- 
tion, to  recover  any  property,  or  upon  any  cause  of 
action,  for  or  upon  which  the  plaintiff  may  maintain 

(435) 


436  PRACTICE. 

such  au  action  or  special  proceeding,  against  all  the 
associates,  by  reason  of  their  interest  or  ownership,  or 
claim  of  ownership  therein,  either  jointly  or  in  com- 
mon, or  their  liability  therefor,  either  jointly  or  sever- 
ally. Any  partnership,  or  other  company  of  persons, 
which  has  a  president  or  treasurer,  is  deemed  an 
association,  within  the  meaning  of  this  section.  (Co. 
Civ.  Proc.  §  1919;  as  amended  by  chap.  184,  Laws  of 
1900). 

This  section  is  taken  from  chapter  258  of  the  Laws  of 
1849,  as  amended  by  chapter  455  of  the  Laws  of  1851. 
The  amendment  of  1900  added  the  second  sentence. 
The  section  is  cited  and  the  cases  under  it  collected  in 
vol.  I,  p.  145,  to  which  reference  is  made. 

Except  as  otherwise  provided  by  statute,  members 
of  joint  stock  associations  are  partners;  and  their  lia- 
bility is  the  same  as  that  of  members  of  other  partner- 
ships. (Moore  v.  Brink,  4  Hun,  402;  People  ex  rel. 
Winchester  v.  Coleman,  133  N.  Y.  279,  285).  A  joint 
stock  company  may  be  said  to  be  a  partnership  with 
some  of  the  powers  of  a  corporation.  [Matter  of  Jones, 
172  X.  Y.  575;  Colton  v.  Rai/mond,  41  Misc.  580).  The 
substantive  law  concerning  such  associations  has  been 
revised  and  codified  in  the  Joint  Stock  Association  Law, 
chapter  235,  Laws  of  1894. 

Under  the  provisions  of  section  1919  of  the  code,  the 
president  or  treasurer  of  one  of  the  associations  men- 
tioned in  such  section,  is  to  be  regarded  for  the  purposes 
of  the  action  by  or  against  the  corporation  as  substan- 
tially a  corporation  sole.  (Westcott  v.  Fargo,  61  N.  Y. 
542).  Under  section  4  of  chapter  258  of  the  Laws  of 
1849,  as  amended  by  chapter  153  of  the  Laws  of  1853,  an 
action  against  all  the  members  of  a  joint  stock  associa- 
tion could  not  be  brought  in  the  first  instance;  but  an 
action  upon  the  claim  against  the  association  must  first 
be  brought  against  the  president  or  treasurer  under  the 
provisions  of  the  law  of  1849 ;  and  no  action  lay  against 
the  members  until  the  execution  against  the  officer  had 
been  returned  unsatisfied.  (Witherhead  v.  Allen,  4 
Abb.  Ct.  x\pp.  Dec.  628).  In  Flar/g  v.  Sicift  (25  Hun, 
623),  which  was  decided  after  the  code  went  into  effect, 


ACTIONS   BY    OR   AGAINST   Pi^RTICULAR   PARTIES.       437 

the  same  rule  was  laid  down.  It  is  quite  clear,  how- 
ever, that  that  case  was  erroneously  decided.  The  code 
provides  that  the  permission  to  sue  the  president  or 
treasurer  does  not  prevent  an  action  from  being  main- 
tained by  or  against  all  the  members  of  the  association. 
(Co.  Civ.  Proc.  §  1923).  Since  the  passage  of  the  code, 
it  has  been  held  that  one  having  a  claim  against  a  joint 
stock  association  consisting  of  seven  or  more  members 
may  bring  his  action  either  against  the  president  or 
treasurer  under  section  1919  of  the  code,  or  against  all 
of  the  members  of  the  association,  at  his  option.  {Hum- 
bert V.  Aheel,  7  Civ.  Proc.  Rep.  417).  The  same  rule 
was  laid  down  in  the  case  of  Hudson  v.  Sjmulding  (25 
N.  Y.  St.  Rep.  256),  in  which  case  Flagg  v.  Sunft 
(supra),  was  overruled.  (Schwartz  v.  Wechler,  2 
Misc.  67).  Where,  however,  an  action  has  been  brought 
against  the  president  or  treasurer,  or  a  counterclaim 
has  been  made  against  the  association  in  an  action 
brought  by  an  officer,  another  action  for  the  same  cause 
cannot  be  brought  against  the  members  of  the  associa- 
tion or  any  of  them  until  judgment  has  been  rendered  in 
the  first  action  and  execution  issued  and  returned 
wholly  or  partly  unsatisfied.  (Co.  Civ.  Proc.  §  1922; 
Humbert  v.  Abeel,  supra).  If  an  association  has  no 
president  or  treasurer,  the  action  may  be  brought  by 
or  against  a  person  exercising  corresponding  functions 
(Thompson  v.  Colonial  Assurance  Co.,  33  Misc.  37; 
affd.,  60  App.  Div.  325)  ;  or  against  a  firm  exercising 
such  functions.  (2V.  Y.  Board  of  Fire  Underwriters  v. 
Whiq^^le  (6  Co.,  36  App.  Div.  49).  If  the  association 
has  ceased  to  exist  an  action  will  not  lie  against  an 
officer  under  section  1919,  and  such  an  objection  may 
be  taken  by  answer.  (Peckner  v.  Webb,  35  Misc.  291). 
Plaintiff  must  allege  and  prove  that  all  the  members  of 
the  association  are  liable,  jointly  or  severally,  to  pay 
his  claim.  (McCabe  v.  Goodfelloto,  133  N.  Y.  89). 
The  action  may  be  maintained  for  a  tort  where  all  the 
members  are  charged  with  committing  the  tort  through 
the  association.  (RourJce  v.  Elk  Drug  Co.,  75  App. 
Div.  145).  In  an  action  for  conspiracy,  the  individual 
members  may  be  joined  as  defendants  with  the  officer 


438  I'KACTICE. 

sued,  where  siicli  individual  juembers  are  char!Li:ed  with 
personal  wronj^doing.       {April  v.  Jicurd,  32  App.  l)iv. 
226),      If  a  judgment  on  contract  is  recovered  against 
an  individual  member  of  an  association,  the  cause  of 
action  ayainst  all  is  merged  in  the  judi^inent.      {United 
Press  V.  Ahell  (Jo.,  87  App.  Div.  344).     An  action  can 
not  be  brought  against  an  association  as  a  corporation, 
nor  is  service  of  the  summons  upon  the  secretary  suffi- 
cient (Hankc  v.  Cigar  Makers'  Union,  27  Misc.  529); 
but  the  defect  is  waived  by  a  general  appearance  in  the 
action  {Mack  v.  American  Express  Co.,  20  Misc.  215)  ; 
and  where  the  proper  officer  has  been  served  the  courts 
are  liberal  in  allowing  amendment  {Messier  V.  Schwarz- 
kopf   and    Dorcr,    35    Misc.     72;    Miuiziger    v.     The 
Courier  Co.,  82  Hun,  575) ;  and  where  a  corporation 
improperly  sues  as  an  association  by  its  president,  the 
court  has  power  to  amend  by  striking  out  the  name  of 
the  president  from  the  title  of  the  action.      {Dean  v. 
Gilbert,  92  Hun,  427).      Where  it  is  conceded  that  the 
person  served  with  the  summons  has  ceased  to  be  an 
officer  of  the  association,  the  service  should  be  set  aside 
on  his  motion.      {Mason  v.  Holmes,  30  Misc.  719).    The 
fact  that  an  association,  against  an  officer  of  which  an 
action  is  brought,  has  less  than  seven  members  is  a 
matter    of   defense    to    be    established    by    defendant. 
{Boyd  v.  Gernant,  82  App.  Div.  456).      Under  certain 
circumstances  a  subordinate  lodge  may  be  sued  as  an 
association   for  a  sick  benefit  even  though  the  grand 
lodge  is  incorporated   {Boyd  v.  Gernant,  supra)  ;  and 
a  local  branch  may  sue  by  its  treasurer  to  recover  an 
indebtedness,    although    it    has    been    deprived    of    its 
charter   by   the   general   governing   body.       {Wicks   v. 
Monahan,lZ^  N.  Y.  232).      Section  19i9  does  not  au- 
thorize an  apj)lication  for  a  writ  of  numdamus  to  com- 
pel the  New  York  Stock  Exchange  to  reinstate  an  ex- 
pelled member.      {Weidenfeld  v.  Keppler,  84  App.  Div. 
235).     The  provisions  of  section  1919  of  the  code  apply 
to  social  clubs.      (See  vol.  I,  p.  145,  and  cases  cited). 
So  far,  however,   as  the  liability  of  members  is  con- 
cerned,   there    is    a    distinction    between    associations 
formed  for  the  purpose  of  pecuniary  profit  and  those 


ACTIONS   BY    OR   AGAINST   PARTICULAR   PARTIES.       439 

formed  for  other  objects.  (McCahe  v.  OoodfeUow,  133 
N.  Y.  89).  lu  the  case  of  clubs  and  voluntary  associa- 
tions generally  the  rights  of  the  individual  members  are 
usually  fixed  by  contract.  {Wicks  v.  Monahan,  130 
N.  Y.  232).  In  the  absence  of  any  constitution  or  of 
any  contract  bet^^'eeu  the  members,  the  court  in  de- 
termining the  right  of  plaintiff,  claiming  to  be  presi- 
dent, to  maintain  an  action  for  a  voluntary  unincor- 
porated association,  will  be  guided  by  the  law  of  cor- 
porations and  that  of  partnerships,  so  far  as  applica- 
ble, and  also  by  the  ordinary  parliamentary  rules  of 
deliberative  bodies.  {Ostrom  v.  Greene,  161  N.  Y.  353). 
A  member  of  an  association  may  under  the  provisions  of 
this  section  maintain  an  action  against  the  president  or 
treasurer  for  any  claim  which  he  has  against  the  associa- 
tion. {Saltsman  v.  tichults,  14  Hun,  256;  Sanders  v. 
Euling,  8  Civ.  Proc.  Rep.  166;  ^yestcott  v.  Fargo,  61 
N.  Y.  542).  In  McMahon  v.  Rauhr  (47  N.  Y.  67)  there 
is  a  dictum  that  a  member  of  an  association  cannot 
maintain  an  action  against  the  officers  thereof  under 
this  section.  That  proposition,  however,  was  not  neces- 
sary to  the  disposition  of  the  case ;  and  since  the  decision 
of  the  cases  cited  above,  it  can  hardly  be  said  to  be  the 
law.  The  president  or  treasurer  may  sue  a  member  of 
a  corporation  on  contract  or  for  a  penalty  or  for  an 
injunction.  (See  cases  cited  in  vol.  I,  p.  145;  McGlynn 
v.  Post,  21  Abb.  N,  C.  97;  see,  also,  Yan  Aernam  v. 
Bleistein,  102  N.  Y.  355). 

The  death  or  legal  incapacity  of  a  member  of  the 
association  does  not  affect  an  action  or  special  proceed- 
ing, brought  as  prescribed  in  section  1919.  If  the  offi- 
cer, by  or  against  whom  it  is  brought,  dies,  is  removed, 
resigns,  or  becomes  otherwise  incapacitated,  during  the 
pendency  thereof,  the  court  must  make  an  order,  direct- 
ing it  to  be  continued  by  or  against  his  successor  in 
office,  or  any  other  officer,  by  or  against  Avhom  it  might 
have  been  originally  commenced.  (Co.  Civ.  Proc.  § 
1920). 

It  is  stated  by  Mr.  Throop  in  his  note  to  this  section, 
that  the  object  of  the  final  clause  Avas  to  permit  the 
action   or   special   proceeding   to    be   continued   by   or 


440  PRACTICE. 

against  the  treasurer  when  the  president  dies,  and  vice 
versa.  He  states  that  a  case  actually  has  happened 
where  the  president  of  an  association  died  while  the 
action  was  pending-  against  him,  and  no  successor  hav- 
ing been  appointed,  the  court  held  that  it  had  no  power 
to  permit  the  action  to  be  continued  against  the  treas- 
urer. This  section  is  made  to  avoid  an}'  such  holding  in 
the  future.  As  to  the  manner  of  making  an  application 
to  substitute  the  new  officer,  see  vol.  I,  p.  814. 

The  proceedings  in  the  action  are  like  those  in  any 
other  action  of  the  same  nature.  The  same  may  be  said 
of  the  pleadings.  The  complaint,  however,  should  set 
up  the  existence  of  the  joint  stock  association,  and  that 
the  officer  who  was  made  a  party  plaintiff  or  defendant 
is  such  an  officer,  and  should  show  that  the  contract  was 
made  b}^  or  with  the  association,  or  that  the  cause  of 
action  existed  in  favor  of  or  against  it,  as  distinguished 
from  an  officer;  if  the  allegation  is  as  to  the  officer,  it 
does  not  set  out  a  good  cause  of  action  against  the 
association.  {Ogdenshurgh  Bank  v.  Van  Rensselaer,  6 
Hill,  240 ;  Delafield  v.  Kinney,  24  Wend.  345 ;  McCahe 
V.  GoodfeUow,  133  N.  Y.  89).  In  such  an  action  the 
officer  against  whom  it  is  brought  cannot  be  arrested 
(Co.  Civ.  Proc.  §  1921) ;  nor  can  his  property  be  at- 
tached on  the  ground  of  the  non-residence  of  all  the 
associates  {Mertz  v.  Fenouillet,  13  App.  Div.  222). 

Sec.    2.    Judgment  in  such,  action. 

The  judgTuent  in  such  action  is  to  be  entered  as  in 
every  other  action  of  the  same  nature. 

A  judgiiaent  against  the  officer  does  not  authorize  an 
execution  to  be  issued  against  his  property,  or  his  per- 
son; nor  does  the  docketing  thereof  bind  his  real  prop- 
erty or  his  chattels  real.  Where  such  a  judgment  is  for 
a  sum  of  money,  an  execution  issued  thereupon  must 
require  the  sheriff  to  satisfy  the  same,  out  of  any  per- 
sonal or  real  property  belonging  to  the  association,  or 
owned,  jointly  or  in  common,  by  all  the  members  thereof. 
(Co.  Civ.  Proc.  §  1921;  as  amended  by  chap.  293,  Laws 
of  1898). 


ACTIONS   BY    OR   AGAINST   PARTICULAR   PARTIES.       441 

Judgment  should  be  entered  against  the  president,  as 
such,  and  not  against  the  association ;  but  such  a  judg- 
ment binds  the  joint  property  of  the  association,  and 
does  not  aifect  the  individual  property  of  the  officer 
against  whom  it  is  entered.  {Natl.  Bank  v.  VanDer- 
loerl-er,  74  N.  Y.  234).  Prior  to  the  amendment  of 
1898  the  real  property  of  the  association  was  not  bound 
by  the  judgment;  if  the  creditor  wished  to  reach  the  real 
property  he  was  obliged  to  sue  the  members  of  the 
association  individually. 

Sec.    3.    Action   against   luember,    after   execution  against   the 
association  returned  unsatisfied. 

After  final  judgment  has  been  entered  against  an  offi- 
cer as  prescribed  in  the  former  sections  of  this  article, 
and  an  execution  issued  thereon  has  been  returned 
wholly  or  partly  unsatisfied,  the  party  in  whose  favor 
the  execution  was  issued,  may  maintain  an  action,  as 
follows : 

1.  Where  he  was  the  plaintiff,  or  a  defendant  recover- 
ing upon  a  counterclaim,  he  may  maintain  an  action 
against  the  members  of  the  association,  or,  in  a  proper 
case,  against  any  of  them,  as  if  the  first  action  had  not 
been  brought,  or  the  counterclaim  had  not  been  made, 
as  the  case  requires ;  and  he  may  recover  therein,  as  part 
of  his  damages,  the  costs  of  the  first  action,  or  so  much 
thereof,  as  the  sum,  collected  by  virtue  of  the  execution, 
was  insufficient  to  satisfy. 

2.  Where  he  was  a  defendant,  and  the  case  is  not 
within  subdivision  first  of  this  section,  he  may  maintain 
an  action,  to  recover  the  sum  remaining  uncollected, 
against  the  persons  who  composed  the  association,  when 
the  action  against  him  was  commenced,  or  the  survivors 
of  them. 

But  this  section  does  not  affect  the  right  of  the  per- 
son, in  whose  favor  the  judgment  in  the  first  action  was 
rendered,  to  enforce  a  bond  or  undertaking,  given  in  the 
course  of  the  proceedings  therein.  (Co.  Civ.  Proc. 
§  1922). 

As  has  been  stated  above,  joint  stock  associations  are 
partnerships,  and  the  rules  governing  the  action  brought 


441^  PUACTICE. 

imdci-  this  sectiou,  are  the  rules  which  apply  to  like 
actions  aiiaiiist  the  nieiiiber.s  of  a  liriii.  (  W'ilhcrhvad  V. 
Allen,  4  Al»l>.  (Jt.  Ai»i».  Dec.  (528;  Moore  v.  I!riiil:,  4  Hun, 
4021. 

All  action  upon  the  claiin  must  he  brought  against 
the  survivors  of  the  joint  stock  association  before  the 
executors  of  a  deceased  member  can  be  sued  upon  it. 
(Moore  v.  Brinks  supra).  The  complaint  should  set  out 
a  subsisting  cause  of  action  against  the  association  on 
the  original  denuind,  as  the  liability  is  on  that  cause  of 
action,  and  not  upon  the  judgment.  {\\  ithcrhead  V. 
Allen,  supra).  In  addition  to  setting  out  the  cause  of 
action  against  the  association,  the  complaint  should 
allege  the  recovery  of  the  judgment,  the  issue  of  an 
execution  and  its  return  wholly  or  partly  unsatisfied,  as 
the  case  may  be,  the  amount  collected  upon  the  judg- 
ment, and  the  amount  remaining  due  thereon.  The 
demand  of  judgment  should  be  for  the  remainder  due 
upon  the  execution,  including  the  costs  of  the  first 
action.  Before  the  code,  the  plaintili'  in  such  an  action 
could  not  recover  the  costs  of  the  action  against  the 
association.  {M'WicrJiead  v.  Allen,  supra).  This  was 
changed  by  section  1!)22  of  the  code,  as  we  have  seen. 
That  section,  however,  makes  no  other  change  in  the 
effect  of  the  judgment;  and  the  judgment  is  no  evidence 
against  the  members,  upon  an  action  against  them, 
except  so  far  perhaps  as  to  limiting  the  amount  of  the 
recovery  against  them  to  an  amount  no  gTeater  than 
that  due  upon  the  judgment;  and  it  will  not  establish 
the  right  of  the  plaintiff  to  recover  against  the  members 
of  the  association,  nor  does  it  preclude  individual  mem- 
bers when  sued  for  the  same  debt  from  contesting  their 
liability  for  the  debts  of  the  association.  (Allen  v. 
Clark,  65  Barb.  563;  Peckurr  v.  AVchh,  35  :Misc.  291, 
292). 

Where  an  action  is  brought  against  the  members  of 
the  association,  as  prescribed  in  subdivision  first  of  sec- 
tion 1922,  the  time  between  the  commencement  of  the 
action  by  or  against  the  officer,  and  the  return  of  the 
first  execution  issued  upon  the  final  judgment  rendered 
therein,  is  not  a  jjart  of  the  time  limited  by  law,  for  the 


ACTIONS   BY    OK   AGAINST    PAKTICULAIl   PARTIES.       443 

coiniiienceiiient  of  the  second  action.       (Co.  Civ.  Proe. 
§  1923). 

Where  an  action,  authorized  by  a  law  of  the  state,  is 
brought  against  one  or  more  persons,  as  stockhoUlers  of 
a  corporation  or  joint-stock  association,  an  objection  to 
any  of  the  proceedings  cannot  be  taken,  by  a  person 
properly  made  a  defendant  in  the  action,  on  the  ground 
that  the  plaintiff  has  joined  with  him,  as  a  defendant  in 
the  action,  a  person,  whose  name  appears  on  the  stock- 
books  of  the  corporation  or  association,  as  a  stockholder 
thereof,  by  the  name  so  appearing;  but  who  is  mis- 
named, or  dead,  or  is  not  liable  for  any  cause.  In  such 
a  case,  the  court  may,  at  any  time  before  final  judg- 
ment, upon  motion  of  either  party,  amend  the  pleadings 
and  other  papers,  without  prejudice  to  the  previous  pro- 
ceedings, by  substituting  the  true  name  of  the  person 
intended,  or  by  striking  out  the  name  of  the  person  who 
is  dead,  or  not  liable,  and,  in  a  proper  case,  inserting  the 
name  of  his  representative  or  successor.  (Co.  Civ. 
Proc.  §  1813). 

The  provisions  of  section  1813  apply  to  an  action 
brought  under  section  1922  of  the  code  against  the  mem- 
bers of  any  association  which  keeps  a  book  for  entry 
of  changes  in  the  membership  of  the  association,  or  the 
ownership  of  its  property,  and  to  each  book  so  kept. 
(Co.  Civ.  Proc.  §  1924). 


444  PRACTICE. 

ARTICLE  II. 
taxpayer's  action  to  prevent  waste. 

SECTION. 

1.  Who  may  maintain  such  action,  and  for  what. 

2.  Security  by  plaintiff. 

3.  Who  must  be  defendants. 

4.  Proceedings  in  the  action. 

5.  Judgment. 

Sec.    1.    Wlio   may   luaiutaiu   such   action,   and  for   ixrliat. 

By  the  rules  of  law  as  established  by  the  courts  before 
the  year  1872,  taxpayers  were  entirely  without  remedy 
for  any  abuse  or  misuse  of  the  credit  of  any  municipal 
corporation,  or  for  any  waste  or  destruction  of  its  prop^ 
erty  or  funds,  no  matter  how  gross  the  fraud  or  wanton 
the  robbery ;  and  notwithstanding  the  officers  of  the  cor- 
poration, those  whom  the  law  had  put  in  authority  to 
watch  over  and  protect  their  constituents  and  guard 
their  interests,  were  faithless  to  their  duty,  or  con- 
federated with  wrongdoers.  (Roosevelt  v.  Draper,  23 
N.  Y.  318).  Neither  was  there  any  authority  in  the 
state  by  its  attorne^^-general  to  intervene  by  action  to 
protect  the  property  rights  and  interests  of  municipal 
corporations.  (People  v.  Ingersoll,  58  N.  Y.  1;  People 
V.  Fields,  58  N.  Y.  491).  This  utter  helplessness  of  the 
taxpayer,  and  the  fact  that  he  Avas  entirely  at  the  mercy 
of  officials  who  might  prove  unworthy  or  criminally  un- 
faithful of  their  trust,  became  an  evil  loudly  calling  for 
correction.  Frauds  had  been  accomplished  and  munici- 
palities wasted  and  burdened  without  redress,  until  the 
legislature  found  it  necessary  to  enact  statutes  with  the 
view  of  remedying  the  defect  in  the  law  and  to  give  the 
taxpayer  a  concurrent  action  with  the  corporation,  for 
the  prevention  or  correction  of  such  wrongs.  ( Ayers  v. 
Latcn-ence,  59  N.  Y.  192).  This  necessity  resulted  first 
in  the  passage  of  chapter  161  of  the  Laws  of  1872,  which 
was  entitled  "  An  act  for  the  protection  of  taxpayers 
against  frauds,  embezzlements  and  wrongful  acts  of 
public  officers  and  agents."  This  act,  subsequently 
incorporated  in  the  code  as  section  1925,  noAv  provides 
that  an  action  to  obtain  a  judgment,  preventing  waste 
of,  or  injury  to,  the  estate,  funds,  or  other  property  of  a 


ACTIONS   BY    OR   AGAINST   PAKTICULAR   PARTIES.       445 

county,  town,  city  or  incorporated  village  of  the  state, 
may  be  maintained  against  any  officer  thereof,  or  any 
agent,  commissioner,  or  other  person,  acting  in  its  be- 
half, either  by  a  citizen,  resident  therein,  or  by  a  corpo- 
ration, who  is  assessed  for  and  is  liable  to  pay,  or, 
within  one  year  before  the  commencement  of  the  action, 
has  paid,  a  tax  therein.  This  section  does  not  affect 
any  right  of  action  in  favor  of  a  county,  city,  town,  or 
incorporated  village,  or  any  public  officer.  (Co.  Civ. 
Proc.  §  1925;  as  amended  by  chap  524,  Laws  of  1892). 
The  amendment  of  1892  extended  to  corporations  the 
right  to  bring  the  action. 

It  was  evidently  found  that  the  provisions  of  this  sec- 
tion were  not  sufficient  to  carry  into  effect  the  inten- 
tions of  the  legislature,  and  therefore,  without  repealing 
the  section,  a  further  statute  was  enacted  upon  the 
same  subject.  That  statute,  in  so  far  as  it  provides 
for  the  right  to  maintain  this  action,  is  as  follows  (as 
amended)  :  All  officers,  agents,  commissioners  and 
other  persons  acting,  or  who  have  acted,  for  and  on 
behalf  of  any  county,  town,  village  or  municipal  corpo- 
ration in  this  state,  and  each  and  every  one  of  them 
may  be  prosecuted,  and  an  action  or  actions  may  be 
maintained,  against  them  to  prevent  any  illegal  official 
act  on  the  part  of  any  such  officers,  agents,  commis- 
sioners or  other  persons,  or  to  prevent  waste  or  injury 
to,  or  to  restore  and  make  good,  any  property,  funds  or 
estate  of  such  county,  town,  village  or  municipal  cor- 
poration, by  any  person  or  corporation  whose  assess- 
ment, or  by  any  number  of  persons  or  corporations 
jointly,  the  sum  of  whose  assessments  shall  amount 
to  one  thousand  dollars,  and  who  shall  be  liable  to  pay 
taxes  upon  such  assessment  or  assessments  in  the 
county,  town,  village  or  municipal  corporation,  to  pre- 
vent the  waste  or  injury  of  whose  property  the  action  is 
brought,  or  who  have  been  assessed  or  paid  taxes  therein 
upon  any  assessment  or  assessments  of  the  above  named 
amount  within  one  year  previous  to  the  commencement 
of  any  such  action  or  actions.  *  *  *  This  section 
shall  not  be  so  construed  as  to  take  away  any  right  of 
action  from  any  county,  town,  village  or  municipal  cor- 


446  PRACTICE. 

poration  or  from  any  public  officer,  but  any  right  of 
action  now  existing,  or  which  may  hereafter  exist  in 
favor  of  any  countj^,  town,  village  or  iiiuuicipal  coi-pora- 
tion,  or  in  favor  of  any  officer  thereof,  may  l)e  enfoi-ced 
by  action  or  otherwise,  by  the  persons  hereinbefore  au- 
thorized to  prosecute  or  maintain  actions;  and  whenever 
by  the  provisions  of  this  section  an  action  may  be  prose- 
cuted or  maintained  against  any  officer  or  other  person, 
his  bondsmen,  if  any,  may  be  joined  in  such  action  or 
proceeding,  and  their  liabilities  as  such  enforced  by  the 
proper  judgment  or  direction  of  the  court;  but  any  re- 
covery under  the  provisions  of  this  act  shall  be  for  the 
benefit  of,  and  shall  be  paid  to  the  officer  entitled  by  law 
to  hold  and  disburse  the  public  moneys  of  such  county, 
town,  village  or  municipal  corporation  and  shall,  to  the 
amount  thereof,  be  credited  the  defendant  in  determin- 
ing his  liability  in  the  action  by  the  county,  town,  vil- 
lage, municipal  corporation  or  public  officer.  The  pro- 
visions of  this  act  shall  apply  as  well  to  those  cases  in 
Avhich  the  body,  board,  officer,  agent,  commissioner  or 
other  person  above  named  has  not,  as  to  those  in  which 
it  or  he  has,  jurisdiction  over  the  subject  matter  of  its 
action.      (Tax  Law,  §  264a  [Laws  1892,  chap.  301]). 

The  general  powers  conferred  by  section  1925  of  the 
code  are  not  enlarged,  but  rather  restricted  and  regu- 
lated by  this  provision  of  the  Tax  Law;  and  the  right 
of  action  is  confined  to  cases  where  the  acts  complained 
of  are  without  legal  authority  or  where  corruption  or 
fraud  is  charged;  and  the  action  cannot  be  maintained 
to  restrain  the  governing  body  of  a  city  from  official 
action  clearly  Avithin  its  power  and  discretion,  there 
being  no  charge  of  fraud,  collusion,  corruption  or  bad 
faith,  although  it  is  averred  that  such  proposed  action 
is  unwise  and  without  due  regard  to  economy  [Talcott 
V.  City  of  Buffalo,  125  X.  Y.  280)  ;  nor  on  the  ground 
that  the  public  officers  in  entering  into  a  contract  of 
purchase  were  induced  to  do  so  by  fraud  on  the  ]iart 
of  the  vendor  {Ziegler  v.  Chapiii,  126  N.  Y.  342)  ;  but 
it  can  be  maintained  where  the  proposed  official  act  is 
beyond  the  authority  of  such  officers  { Ziegler  v.  Clicipin, 
supra)  ;  or  where  formalities  prescribed  by  statute  have 


ACTIONS    BY    OR   AGAINST   PARTICULAR   PARTIES.       447 

not  been  complied  Avitli  (Queens  County  Water  Co.  v. 
Monroe,  83  App.  Div.  105)  ;  or  to  prevent  the  payment 
of  a  claim  based  upon  a  contract  which  the  public  au- 
thorities had  no  power  to  enter  into.  {Rogers  v.  Super- 
visors of  JVestchester,  77  App.  Div.  501).  A  resident 
taxpayer  of  the  city  of  New  York,  in  whatever  part  of 
the  city  residing,  may  maintain  an  action  to  prevent  the 
carrying  out  of  an  illegal  contract  entered  into  by  the 
town  board  of  the  former  town  of  Jamaica.  (  W  enk  v. 
City  of  Nero  York,  171  N.  Y.  607).  Where  the  title  to 
office  depends,  not  upon  admitted  facts  or  indisputable 
records,  or  the  plain  letter  or  fair  construction  of  a 
statute,  but  upon  disputable  and  extraneous  facts,  such 
title  cannot  be  tried  in  a  taxpayer's  action  brought  to 
restrain  the  payment  of  a  salary,  but  must  be  tried  by 
quo  tear  ran  to,  and  until  so  tried,  the  payment  of  such 
salary  cannot  be  enjoined;  nor  does  section  27  of  the 
Civil  Service  Law  (Laws  of  1899,  chap.  370)  affect  this 
rule.  (Greene  v.  Knox,  175  N.  Y.  432).  Such  action 
will  not  lie  to  test  the  validity  of  a  classification,  pre- 
sumably made  in  good  faith,  of  positions  as  competitive 
and  non-competitive  under  the  Civil  Service  Law  ( Chit- 
tenden v.  Wurster,  152  N.  Y.  345)  ;  but  will  lie  where 
there  is  no  pretence  of  a  compliance  with  such  law 
(Rogers  V.  Common  Council  of  Buffalo,  123  N.  Y.  173; 
Feck  v.  Belknap,  130  N.  Y^.  394)  ;  nor  is  it  a  defense  to 
the  action  that  the  person  appointed  is  otherwise  com- 
petent and  that  the  compensation  is  not  excessive. 
( Id. ) .  In  Stuher  v.  Colcr  ( 164  N.  Y^  22)  the  court,  with 
the  consent  of  the  parties,  determined  the  rights  of 
claimants  to  an  office,  although  disclaiming  the  inten- 
tion of  deciding  that  a  taxpayer's  action  in  equity  will 
lie  for  such  purpose.  The  action  will  lie  to  pre- 
vent the  payment  of  a  judgment  against  a  city,  en- 
tered upon  an  unauthorized  offer  of  judgment,  and  it 
is  not  necessary  for  plaintiff  to  shoAV  that  the  city  is 
not  justly  indebted  to  the  judgment  creditor  in  the 
amount  of  the  judgment  (Bush  v.  O'Brien,  164  N.  Y. 
205)  ;  but  after  such  judgment  has  been  paid,  restitu- 
tion cannot  be  compelled  unless  it  is  shown  that  the 
city  was  not  thus  indebted.      (Bush  v.  Coler,  60  App. 


ri^8  PUACTICE. 

Div.  56;  affd.  without  op.,  170  N.  Y.  587).  The  courts 
have  not  power  to  inquire  into  the  motives  inducing 
legislative  action,  whether  of  the  legislature  of  the  state 
or  of  the  common  council  of  a  city.  (Kittinger  v. 
Bii/falo  Traction  Co.,  160  N.  Y.  377).  The  purpose  of 
the  statute  is  to  provide  ample  remedy  and  protection 
to  the  taxpayers  against  all  wrongful  prejudicial  acts 
of  the  officers  and  agents  of  a  municipal  corporation, 
affecting  not  only  its  property  rights  but  its  credit,  and 
embraces  within  its  purview  every  means  by  whicli  the 
corporation  can  be  charged  pecuniarily  or  the  taxable 
property  within  its  limits  burdened  {Ayres  v.  Lawrence, 
59  N.  Y^.  192)  ;  and  it  is  to  be  liberally  construed  for  the 
protection  of  the  taxpayers.  (Id.;  Queens  County 
Water  Co.  v.  Monroe,  83  App.  Div.  105). 

The  right  to  maintain  an  action  under  these  acts  is 
not  confined  to  cases  where,  before  their  passage,  an 
equitable  action  could  have  been  brought  by  the  muni- 
cipal corporation  for  the  same  kind  of  relief.  (Oster- 
houdt  v.  Rigncy,  98  N.  Y.  222).  The  action  may  be 
brought  by  any  person  whose  assessment,  or  by  any 
number  of  persons  jointly  the  sum  of  whose  assessments 
shall  amount  to  one  thousand  dollars,  and  who  shall  be 
liable  to  pay  taxes  on  such  assessment  or  assessments  in 
the  municipal  corporation.  Within  that  provision  an 
allegation  that  the  plaintiffs  were,  as  residents  and  tax- 
payers of  the  town,  liable  to  assessment  and  taxation 
therein  in  the  prescribed  amount,  and  were  residents 
and  taxpayers  and  owners  of  real  and  personal  property 
liable  to  assessment  and  taxation  therein,  was  held  to  be 
sufficient  to  show  that  they  had  the  right  to  bring  the 
action.  (Ayres  v.  Laicrcnce,  59  N.  Y.  192).  A  person, 
although  a  taxpayer,  will  not  be  permitted  to  maintain 
such  an  action  if  it  appears  from  the  complaint  that  he 
has  brought  it  by  collusion  and  in  bad  faith,  or  where  it 
is  apparent  that  the  equitable  powers  of  the  court  are 
sought  to  be  used  as  a  mere  pretense  to  give  jurisdiction 
(Kimball  v.  Heivitt,  15  Daly,  124 ;  s.  c,  22  N.  Y.  St.  Rep. 
311;  Hull  V.  Ely,  2  Abb.  N.  C.  440)  ;  but  the  mere  fact 
that  a  taxpayer  has  some  private  interest  in  having  the 


ACTIONS   BY    OR   AGAINST   PARTICULAR   PARTIES.       449 

illegal  action  restrained  or  set  aside,  does  not  disqualify 
him  to  bring  the  action.  {Kingsley  v.  Boimnan,  33  App. 
Div.  1,  op.  FoLLETT,  J.,  pp.  7-10).  The  action  will  not 
lie  to  restrain  the  authorities  of  a  city  from  evicting 
plaintiff  from  real  property  belonging  to  the  city,  no 
public  interest  being  involved,  and  plaintiff  having  an 
adequate  remed}^  at  law.  {Rogers  v.  O'Brien,  153  N.  Y. 
357 ) .  An  action  may  be  brought  under  this  statute  by 
a  taxpaj^er  of  a  town  against  commissioners  thereof, 
appointed  under  an  act  authorizing  municipal  corpo- 
rations to  aid  in  the  construction  of  railroads,  to  re- 
strain a  contemplated  and  threatened  unauthorized 
issue  of  town  bonds  by  such  commissioners  {Ayers  V. 
Lawrence,  59  N.  Y.  192)  ;  or  to  restrain  their  negotia- 
tion or  payment  and  compel  the  cancellation  of  such 
bonds.  {Metzger  v.  A.  &  A.  R.  R.  Co.,  79  N.  Y.  171). 
Such  an  action  is  not  defeated  by  the  fact  that  the  ob- 
jection which  is  made  to  the  bonds  might  be  used  as  a 
matter  of  defense  in  an  action  upon  them  [Strang  v. 
Cook,  47  Hun,  46)  ;  but  it  is  in  the  power  of  the  court 
to  deny  equitable  relief  where  there  has  been  great 
laches  on  plaintift''s  part  in  bringing  his  action.  {Cal- 
houn V.  Millard,  121  N.  Y.  69).  An  action  may  also 
be  brought  under  this  statute  to  vacate  the  audit  by  a 
town  board  of  audit  of  a  claim  which  the  board  had  no 
authority  to  allow,  or  when  the  audit  was  fraudulent 
and  collusive,  and  to  restrain  the  collection  of  the  tax 
therefor.  ( Osterhoudt  V.  Rigney,  98  N.  Y.  222 ;  Rocke- 
feller v.  Taylor,  69  App.  Div.  176;  Wright  v.  Rosen- 
hloom,  52  App.  Div.  579).  An  action  may  be  main- 
tained under  this  statute  for  the  prevention  and  re- 
straint of  "  any  illegal  official  act "  on  the  part  of  the 
officers  of  any  county,  town  or  municipal  corporation; 
and  whenever  an  intended  and  threatened  act  of  the 
official  is  illegal,  the  taxpayer  is  entitled  to  sue  and  pre- 
vent the  meditated  violation  of  law,  irrespective  of  the 
consequences  of  such  violation.  The  statute  assumes 
that  any  illegal  official  act  is  or  may  be  injurious  to  the 
corporation  when  done  by  its  servant,  and  allows  him  to 
be  restrained,  simply  because  of  its  illegality  {AVarr'ui 
29 


450  PUACTICE. 

V.  Jiahhr'ui.  105  N.  Y.  534;  Knowlcs  v.  City  of  Neio  York, 
37  .Mis;c.  1!)5,  U)S;  alTd.,  74  App.  Div.  032;  176  N.  Y. 
430;  Bush  v.  (rBrien,  164  N.  Y.  205);  but  the  legisla- 
ture (lid  uot  iuteud,  by  the  statute,  to  draw  into  the 
j)ieventive  jurisdictiou  of  equity,  at  the  instance  of 
any  taxpayer,  every  proposed  illegal  official  act,  irre- 
spective of  whether  the  act  sought  to  be  restrained  in- 
volves a  waste  of  public  property  or  a  violation  of 
public  rights,  or  any  injury  to  the  interests  of  tax- 
payers, as  such.  {Rogers  v.  (yUrien,  153  N.  Y.  357). 
In  Kurtz  v.  Clausen  (38  Misc.  105)  an  agreement 
whereby  an  individual  ^vas  given  the  privilege  to  place 
chairs  in  certain  public  parks  and  charge  for  their  use 
was  annulled,  as  being  in  derogation  of  public  right. 
An  action  will  also  lie  by  a  taxpayer  of  the  city  of  New 
York  against  the  municipal  corporation  to  set  aside  an 
illegal  contract  for  the  lease  of  a  wharf  or  ferry  fran- 
chise in  that  city,  {^tarin  v.  Mayor ^  etc.,  42  Hun,  549; 
revd.  on  other  gi^ounds,  112  N.  Y.  206).  Where  it  ap- 
peared that  the  board  of  excise  of  a  city  was  about  to 
cancel  or  discharge  a  judgment  against  certain  defend- 
ants which  had  been  recovered  against  them  for  viola- 
tion of  the  excise  law,  for  a  much  less  amount  than  was 
due  thereon,  it  was  held  that  a  taxpayer  might  main- 
tain an  action  under  this  statute  to  restrain  such  act. 
{^tandart  v.  Burtis,  46  Hun,  82).  It  is  stated,  how- 
ever, in  Lutes  v.  Briggs  (64  N.  Y.  404)  that  the  act  was 
not  intended  to  apply  to  a  case  where  the  statute  under 
which  defendants  were  alleged  to  be  acting  gives  a 
remedy  for  tlui  wrong  complained  of.  A  taxpayer  can- 
not maintain  an  action  under  this  statute  to  restrain 
the  board  of  supervisors  from  raising  the  money  to  pay 
a  judgment  which  has  been  honestlj^  procured  against 
the  county;  the  statute  cannot  be  used  to  give  any  tax- 
payer within  the  limits  of  the  municipal  corporation 
the  right  to  litigate  afresh  questions  which  have  been 
fairly  and  fully  decided  in  a  former  action.  {Lee  v. 
Supcrrs.  of  Jefferson,  62  How.  Pr.  201 ) .  Where  it  was 
claimed  that  the  original  bonds  of  a  town  had  been 
illegally  issued,  but  afterwards  the  town  had  lawfully 
issued  new  bonds  under  the  authority  of  the  statute,  to 


ACTIONS.  BY   OR   AGAINST   PARTICULAR   PARTIES.       451 

retire  the  bonds  thus  claimed  to  be  void,  and  the  bonds 
last  issued  had  come  into  the  hands  of  bona  fide  pur- 
chasers, it  was  held  that  a  taxpayer  could  not  maintain 
an  action  under  this  statute  to  prevent  the  payment  of 
the  bonds  last  issued.  (Hills  v.  PeeksJcUl  Sav.  Bank, 
101  N.  Y.  490 ) .  Where  an  action  is  brought  to  set  aside 
bonds  of  a  town  which  were  by  the  statute  made  a  lien 
upon  the  real  estate  within  the  town,  it  is  not  barred  by 
the  statute  of  limitations,  although  it  was  not  com- 
menced within  ten  years  after  the  bonds  were  issued 
and  transferred  by  the  commissioners;  the  action  for 
such  purpose  is  analogous  in  principle  to  one  instituted 
for  the  removal  of  a  cloud  upon  the  title  to  land. 
(Strang  v.  Cook,  47  Hun,  46).  Still,  in  such  case, 
where  it  appeared  that  the  bonds  had  been  issued  more 
than  ten  years  before,  and  the  interest  had  been  paid 
annually,  and  part  of  the  principal  had  also  been  paid, 
it  was  held  that  the  court  would  not  entertain  an  action 
by  a  taxpayer  to  compel  the  cancellation  of  the  bonds 
on  account  of  the  stateness  of  the  claim.  (Calhoun  v. 
Millard,  121  N.  Y.  69) .  Where  the  statute  under  which 
the  bonds  had  been  issued  declared  that  "  all  bonds 
issued  by  the  commissioners  shall  be  valid  and  binding 
upon  the  town?;  represented  by  such  commissioners  in 
the  hands  of  l)07ia  fide  holders  "  a  taxpayer  was  not  per- 
mitted to  question  the  title  of  an  innocent  purchaser  of 
the  bonds  and  compel  a  cancellation  of  them  on  the 
ground  that  the  requisite  consents  for  their  issue  had 
not,  in  fact,  been  obtained.  (Alvord  v.  Syracuse  8iv. 
Bank,  98  N.  Y.  599).  Acts  of  municipal  authorities 
done  pursuant  to  an  unconstitutional  law  are  illegal 
official  acts  and  may  be  restrained  by  a  taxpayer  (Rath- 
hone  v.  Wirth,  150  N.  Y.  549;  Bohmer  v.  Haffner,  161 
N.  Y.  390)  ;  nor  is  the  action  prematurely  brought,  if 
brought  before  any  step  is  taken  under  such  law.  ( Id. ; 
Williams  v.  Boynton,  147  N.  Y.  426).  In  Hendrickson 
V.  City  of  Neio  York  ( 160  N.  Y.  144 )  a  ten-year  lighting 
contract,  entered  into  by  the  town  board  of  the  town  of 
Jamaica  fourteen  days  before  the  Greater  New  York 
charter  took  effect,  was  held  to  be  invalid  on  the  ground 
that  it  was  not  made  in  good  faith  and  was  in  violation 


4r)2  PRACTICE. 

of  the  iniblic  policy  disclosed  by  such  charter.  All 
alleged  illegal  acts  may  be  stated  in  the  complaint  and 
each  such  act  is  not  a  separate  cause  of  action  and  need 
not  be  stated  as  such.  (Robinson  v.  Brown,  16G  N.  Y. 
159;  Barnes  v.  McGwire,  33  Misc.  438).  Mere  general 
allegations  that  the  acts  complained  of  were  fraudulent 
or  collusive  or  in  breach  of  trust  are  mere  conclusions 
and  not  averments  of  issuable  facts.  (  Wallace  v.  Jones, 
S3  App.  Div.  152;  Knowles  v.  City  of  New  York,  176 
K  Y.  430). 

Sec.    2.    Security  by  plaintiff. 

Such  person  or  persons,  corporation  or  corporations, 
upon  the  commencement  of  such  action,  shall  furnish 
a  bond  to  the  defendant  therein,  to  be  approved  by  a 
justice  of  the  supreme  court  or  the  county  judge  of  the 
county  in  which  the  action  is  brought,  in  such  penalty 
as  the  justice  or  judge  approving  the  same  shall  direct, 
but  not  less  than  two  hundred  and  fifty  dollars,  and  to 
be  executed  by  an}-  two  of  the  plaintiffs,  if  there  be 
more  than  one  party  plaintiff,  providing  said  two  par- 
ties plaintiff  shall  severally  jtistify  in  the  sum  of  five 
thousand  dollars.  Said  bond  shall  be  approved  by  said 
justice  or  judge  and  be  conditioned  to  pay  all  costs  that 
may  be  awarded  the  defendant  in  such  action  if  the 
court  shall  finally  determine  the  same  in  favor  of  the 
defendant.  The  court  shall  require,  when  the  plaintiffs 
shall  not  justify-  as  above  mentioned,  and  in  any  case 
may  require,  two  or  more  sufiicient  sureties  to  execute 
the  bond  above  ]>rovided  for.  Such  bond  shall  be  filed 
in  the  office  of  the  county  clerk  of  the  county  in  Avhich 
the  action  is  brought,  and  a  copy  shall  be  served  with 
the  summons  in  such  action.  If  an  injunction  is  ob- 
tained as  herein  provided  for,  the  same  bond  may  also 
provide  for  the  payment  of  the  damages  arising  there- 
from to  the  party  entitled  to  the  money,  the  auditing, 
allowing  or  ])aying  of  which  was  (^njoined,  if  the  court 
shall  finally  determine  that  the  plaintiff"  is  not  entitled 
to  such  injunction.  (Tax  Law,  §  264a  [Laws  1892, 
chap.  301]).  The  provision  of  the  statute  requiring 
the  filing  of  the  bond  is  iiuindatory;  and  the  action  can- 


ACTIONS   BY    OR   AGAINST   PARTICULAR   PARTIES.       453 

not  be  maintained  without  it.  The  usual  undertaking 
given  upon  procuring  an  injunction  is  not  a  sufficient 
substitute  for  the  bond  required  b}^  this  statute.  {Tap- 
pen  V.  Crissey,  64  How.  Pr.  496).  But  Avhere  a  bond 
has  been  filed  which  is  insufficient  under  the  statute, 
an  order  may  be  made,  even  after  trial,  permitting  the 
filing  of  a  new  bond  nunc  pro  time.  {O'Connor  V. 
Walsh,  83  App.  Div.  179. 

Sec.    3.    Wlio  must  be  defendants. 

The  statute  (Tax  Law,  §  264a)  provides  that  all  offi- 
cers, agents,  commissioners  and  other  persons  acting,  or 
who  have  acted,  for  and  on  behalf  of  any  county,  town, 
village  or  municipal  corporation  in  this  state,  and  each 
and  every  one  of  them  may  be  prosecuted;  it  also  pro- 
vides that  whenever  under  its  provisions  an  action  may 
be  prosecuted  or  maintained  against  any  officer  or  other 
person,  his  bondsmen  if  any  may  be  joined  in  such 
action  or  proceeding.  The  enumeration  in  the  statute, 
of  the  persons  against  whom  an  action  may  be  brought, 
does  not  dispense  with  the  necessity  of  joining  all  other 
persons  who  may  be  directly  affected  by  the  judgment, 
and  who  are  necessary  parties  to  the  complete  determi- 
nation of  the  controversy.  {Osterhoudt  v.  Super vrs. 
of  Ulster,  98  N.  Y.  239;  Greene  v.  Knox,  175  N.  Y.  432). 
If  the  action  is  brought  to  vacate  audits  of  town  ac- 
counts, and  to  restrain  the  levying  of  a  tax  for  their 
payment,  the  persons  in  whose  favor  the  audits  were 
made  must  be  joined  as  defendants.  {Osterhoudt  V. 
S'lopervrs.  of  Ulster,  supra).  In  an  action  to  re- 
strain the  payment  of  money  by  officers  of  a  muni- 
cipal corporation,  the  persons  who  claim  to  be  en- 
titled to  the  money  must  be  joined  as  parties  defendant 
to  the  action.  {Smith  v.  Crissey,  13  Abb.  N.  C. 
149).  Where  the  action  is  brought  to  restrain  the 
satisfaction  of  judgments  against  a  municipal  corpora- 
tion, the  judgment  debtors  are  necessary  parties  defend- 
ant. {Standart  v.  Burtis,  46  Hun,  82).  In  an  action 
to  restrain  the  officers  of  a  city  from  issuing  bonds  of 
the  city  to  raise  funds  by  which  a  board  of  commis- 
sioners are  to  carry  on  a  public  work,  the  city  itself  and 


454  PRACTICE. 

the  board  of  commissiouers  are  uecessary  parties  de- 
fendant; but  contractors  and  land  owners  who  expect 
to  be  paid  out  of  a  fund  sought  to  be  raised,  are  not 
necessary  parties.  {JJurWurt  v.  Banks,  1  Abb.  N.  C. 
157;  67  N.  Y.  568).  And  where  an  action  is  brouj^ht 
against  municipal  authorities  to  prevent  the  carrying 
out  of  an  illegal  contract  entered  into  by  their  prede- 
cessors in  office,  and  merely  injunctive  relief  is  de- 
manded, such  official  predecessors  are  not  necessary 
defendants.  (WOik  v.  Cittj  of  New  York,  171  N.  Y. 
607). 

Sec.    4.    Proceedings  in  tlie  action. 

The  proceedings  in  this  action  are  the  same  as  in  any 
other  action  of  the  same  nature  and  brought  to  obtain 
relief  of  the  same  kind.  If  the  action  is  brought  to  pro- 
cure an  injunction  or  for  equitable  relief,  it  is  triable 
by  the  court;  if  it  is  brought  to  recover  back  money  it 
is  triable  by  a  jury  like  any  other  action  for  damages. 
The  same  provisional  remedies  may  be  granted  in  this 
action  as  in  other  actions. 

In  case  the  waste  or  injury  complained  of  consists 
in  any  board,  officer  or  agent  in  any  county,  town,  vil- 
lage or  municipal  corporation  by  collusion  or-  otherwise, 
contracting,  auditing,  allowing  or  paying,  or  conniving 
at  the  contracting,  audit,  allowance  or  payment  of  any 
fraudulent,  illegal,  unjust  or  inequitable  claims,  de- 
mands or  expenses,  or  any  item  or  part  thereof,  against 
or  by  such  county,  town,  village  or  municipal  corpora- 
tion, or  by  permitting  a  judgment  or  judgments  to  be 
recovered  against  such  county,  town,  village  or  muni- 
cipal corporation,  or  against  himself  in  his  official 
capacity,  either  by  default  or  without  the  interposition 
and  proper  presentation  of  any  existing  legal  or  equita- 
ble defenses,  or  by  any  such  officer  or  agent  retaining  or 
failing  to  pay  over  to  the  proper  authorities  any  funds 
or  property  of  any  county,  town,  village  or  municipal 
corporation,  after  he  shall  have  ceased  to  be  such  officer 
or  agent,  the  court  may,  in  its  discretion,  prohibit  the 
payment  or  collection   of  any   such   claims,   demands, 


ACTIONS   BY   OR   AGAINST   PARTICULAR   PARTIES.       455 

expenses  or  judgments,  in  whole  or  in  part.  (Tax  Law, 
§  264a  [Laws  1892,  chap.  301]). 

The  regulations  with  regard  to  provisional  remedies 
are  the  same  as  those  prescribed  in  other  actions.  See 
those  subjects  in  volume  I. 

All  books  of  minutes,  entry  or  account,  and  the  books, 
bills,  vouchers,  checks,  contracts  or  other  papers  con- 
nected with  or  used  or  filed  in  the  office  of,  or  with  any 
officer,  board  or  commissioner,  acting  for  or  on  behalf  of 
any  county,  town,  village  or  municipal  corporation  in 
this  state,  are  declared  by  said  act  to  be  public  records, 
and  to  be  open,  subject  to  reasonable  regulations  to  be 
prescribed  by  the  officer  having  the  custody  thereof,  to 
the  inspection  of  any  taxpayer.  (Tax  LaAV,  §  264a 
[Laws  1892,  chap.  301]). 

Sec.    5.   Judgment. 

The  rules  for  the  entry  of  judgment  in  this  action  are 
the  same  as  in  other  actions  of  the  same  nature,  or 
brought  to  obtain  relief  of  the  same  kind.  The  court 
may  grant  the  same  relief  in  the  final  judgment  as  it  is 
authorized  to  grant  by  injunction.  (See  last  section). 
The  court  shall  enforce  the  restitution  and  recovery 
of  the  wrongful  claims,  demands,  expenses  or  judg- 
ments,  if  heretofore  or  hereafter  paid,  collected  or  re- 
tained by  the  person  or  party  heretofore  or  hereafter 
receiving  or  retaining  the  same,  and  also  may,  in  its  dis- 
cretion, adjudge  and  declare  the  colluding  or  defaulting 
official  personally  responsible  therefor,  and  out  of  his 
property,  and  that  of  his  bondsmen,  if  any,  provide  for 
the  collection  or  repayment  thereof,  so  as  to  indemnify 
and  save  harmless  the  said  county,  town,  village  or 
municipal  corporation  from  a  part  or  the  whole  thereof; 
and  in  case  of  a  judgment,  the  court  may,  in  its  dis- 
cretion, vacate,  set  aside  and  open  such  judgment,  with 
leave  and  direction  for  the  defendant  therein  to  inter- 
pose and  enforce  any  existing  legal  or  equitable  defense 
therein,  under  the  direction  of  such  person  as  the  court 
may,  in  its  judgment  or  order,  designate  and  appoint. 
(Tax  Law,  §  264a,  [Laws  1892,  chap.  301]).    The  stat- 


45G  PRACTICE. 

ute  authorizes  uu  individual  judgiucut  aj^ainst  any  de- 
fendant in  a  proper  case.  As  to  costs  in  tlie  action,  see 
that  sul>j(H't  treat(Hl  in  vol.  TT,  p.  537.  The  same  rules 
obtain  in  this  action  as  are  laid  down  b}'  the  code  i'or  all 
other  actions  wherein  relief  of  the  same  nature  is  de- 
manded. A\'her('  i>ublic  officers  have  been  actinji'  in  good 
faith  and  under  claim  of  right,  costs  should  not  be 
awarded  against  them.  {O'Connor  v.  Walsh,  83  App. 
Div.  179). 


ARTICLE  III. 

ACTION  AGAINST  OR  BETWEEN  JOINT  DEBTORS. 

SECTION. 

1.  Judgment  against  joint  debtors,   when   all   not  served. 

2.  Action  to  charge  defendants  not  summoned. 

3.  Action  against  partner  not  sued. 

4.  Continuance    of    business    during    action    for    partnership    ac- 

counting. 

Sec.    1.    Judgment  against  joint  debtors,  vphen  all  not  served. 

In  an  action,  wherein  the  complaint  demands  judg- 
ment for  a  sum  of  money  against  two  or  more  defend- 
ants, alleged  to  be  jointly  indebted  upon  contract,  if  the 
summons  is  served  upon  one  or  more,  but  not  upon  all 
of  the  defendants,  the  plaintiff  may  proceed  against  the 
defendant  or  defendants,  upon  whom  it  is  served,  unless 
the  court  otherwise  directs;  and,  if  he  recovers  final 
judgment,  it  may  be  taken  against  all  the  defendants 
thus  jointly  indebted.     (Co.  Civ.  Proc.  §  1932). 

This  action  does  not  authorize  a  judgment  against 
several  to  be  entered  by  confession  of  one.  (Vol.  II,  p. 
756;  Lambert  v.  Converse,  22  How.  Pr.  265).  As  to  the 
power  of  a  joint  debtor,  in  an  action  brought  against  all, 
to  make  an  offer  of  judgment  against  all,  which  will 
bind  the  joint  property,  the  cases  seem  to  be  in  conflict. 
{Emery  \.  Emery,  ^  How.  Pr.  130;  Garrison  y.  Garrison, 
67  How.  Pr.  271;  Bannerman  v.  Quackenhush,  9  Civ. 
Proc.  Rep.  lOS).  A  judgment,  however,  entered  cm  such 
an  offer,  will  not  be  set  aside  at  the  instance  of  another 
creditor,  where  the;  offer  made  by  the  partner  .served  is 


ACTIONS   BY    OK   AGAINST   PARTICULAR   PARTIES.       457 

ratified  by  the  partner  not  served,  and  the  indebtedness 
is  conceded.  {Rosenberg  V.  Bochm,  25  N.  Y.  Supp. 
936).  Section  1932  does  not  apply  to  an  action  against 
heirs  or  devisees  on  the  debt  of  their  ancestor  or  testator. 
{^]'1iltaker  v.  Young,  2  Cow.  569;  ^chernierhorn  v.  Bar- 
hydt,  9  Paige,  28,  39).  A  joint  contract  made  by  an  in- 
fant and  an  adult  constitutes  a  joint  indebtedness 
within  the  statute;  and  where  service  is  made  on  the 
adult  alone,  a  joint  judgment  against  both  is  proper, 
although  the  infant  did  not  appear  by  a  guardian  ud 
litem.     (Mason  v.  Denisou,  15  Wend.  64). 

Where  suit  is  brought  under  the  provision  of  the 
statute,  and  the  defendant  served,  succeeds  in  establish- 
ing a  personal  defense,  such  as  infancy,  although  the 
■plaintiff's  cause  of  action  is  fully  proved,  he  is  not 
entitled  to  judgment  against  the  other  defendants 
named  in  the  summons.  Nor  in  such  a  case  is  the  plain- 
tiff entitled  to  discontinue  without  costs  as  to  the  de- 
fendant served,  if  he  proceeds  to  the  trial  with  full 
knowledge  of  the  defense,  and  puts  the  defendant  to  the 
expense  of  establishing  it.  (Leggctt  v.  Boi/d,  6  Wend. 
500).  The  judgment  cannot  be  entered  until  the  time  to 
answer  of  all  the  defendants  has  expired,  whether  ser- 
vice was  made  upon  them  personally  or  otherwise.  ( Orr 
V.  McEicen,  16  Hun,  625).  Judgment  must  be  against 
all  the  defendants  jointl}^  {Laliey  v.  Kingon,  13  Abb. 
Pr.  192;  22  How.  Pr.  209).  A  judgment  against  those 
served,  only,  is  erroneous,  and  will  be  reversed  {Nelson 
V.  Bfjsticicl-,  5  Hill,  37),  if  the  objection  is  properly 
made  in  the  lower  court.  {Stertiherger  v.  Bernlieimer, 
121  N.  Y.  194).  The  court  has  power  to  correct  such  a 
judgment  upon  motion  so  as  to  enter  it  against  all  nunc 
pro  tunc.  {Produce  Bank  v.  Morton,  67  N.  Y.  199). 
It  would  seem  also  that  the  court  may  permit  the  judg- 
ment to  be  entered  against  one  joint  debtor  who  is  in  de- 
fault, although  the  others  have  interposed  answers,  and 
the  action  is  still  pending  and  undetermined  on  the  is- 
sues formed  by  such  answers.  {Orleans  Co.  Natl.  Batik  v. 
Spencer,  19  Hun,  569 ) .  Where  both  of  the  joint  debtors 
are  principal  debtors  and  the  summons  was  served  upon 
one  of  them,  and  a  verdict  was  rendered  against  him 


458  PRACTICE. 

upou  the  issue  formed  by  his  answer,  aucl  before  hear- 
ing the  exceptions,  whieli  were  ordered  to  be  heard  at 
the  special  term,  the  defendant  dies,  the  court  may  make 
an  order  permitting-  the  plaintiff  to  enter  judgment 
nunc  pro  time  as  of  the  date  of  the  verdict;  and  the 
action  may  be  commenced  by  the  plaintiff  against  the 
joint  debtor  not  served,  to  charge  his  property  after  the 
entry  of  that  judgment  precisely  as  though  it  had  been 
entered  in  the  lifetime  of  the  one  served.  (Long  v.  Staf- 
ford, 10'^^.  Y.  274). 

Such  a  judgment  is  conclusive  evidence  of  the  liability 
of  each  defendant,  upon  whom  the  summons  was  per- 
sonally served,  or  who  appeared  in  the  action.  Where  it 
is  taken  against  a  defendant,  upon  whom  the  summons 
was  served  by  publication,  or  without  the  state,  pursu- 
ant to  an  order  for  that  purpose,  it  has  the  effect,  as 
against  that  defendant,  specified  in  section  445  of  the 
code.  As  against  such  a  defendant,  who  is  allowed  to 
defend  after  judgment,  or  as  against  a  defendant  not 
summoned,  it  is  evidence  only  of  the  extent  of  the  plain- 
tiff's demand,  after  the  liabilit^^  of  that  defendant  has 
been  established,  by  other  evidence.  (Co.  Civ.  Proc.  § 
1933). 

Section  445  of  the  code  and  a  discussion  as  to  when  a 
defendant  will  be  allowed  to  defend  under  its  provisions^ 
will  be  found  at  vol.  I,  p.  228, 

Where  a  judgment  has  been  taken,  as  prescribed  in 
section  1932  of  the  code,  the  clerk,  with  whom  the  judg- 
ment-roll is  filed,  must  write  upon  the  docket,  opposite 
or  under  the  name  of  each  defendant,  upon  whom  the 
summons  was  not  served,  the  words,  "not  summoned  ;'* 
and  a  like  entry  must  be  made  by  each  county  clerk, 
with  whom  the  judgment  is  afterwards  docketed.  The 
judgment  does  not,  by  virtue  of  its  being  docketed,  bind 
any  real  propert}^,  or  chattel  real,  owned  by  such  a  de- 
fendant. But  this  section  does  not  affect  the  plaintiff's 
right  of  action,  to  charge  the  judgment  upon  any  real 
property.     (Co.  Civ.  Proc.  §  193G). 

An  execution  upon  such  a  judgment  must  be  issued, 
in  form,  against  all  the  defendants;  but  the  attorney 
for  the  judgment  creditor  must  indorse  thereupon  a 


ACTIONS   BY    OR   AGAINST   PARTICULAR   PARTIES.       459 

direction  to  the  sheriff,  containiii<i;-  the  name  of  each  de- 
fendant, who  was  not  summoned,  and  restricting  the 
enforcement  of  the  execution,  as  prescribed  in  section 
1935  of  the  code.     (Co.  Civ.  Proc.  §  1934). 

As  to  the  defendants  served,  who  are  served  by  publi- 
cation, execution  can  only  issue  to  levy  upon  property 
which  has  been  taken  upon  attachment  against  them. 
(Vol.  II,  p.  985).  Such  defendants  are  said  by  Mr. 
Throop's  note  to  section  1934  to  be  included  in  the 
phrase  "  not  summoned  "  so  used  in  that  section. 

An  execution  against  the  person,  issued  upon  such  a 
judgment,  shall  not  be  enforced  against  the  person  of  a 
defendant,  whose  name  is  so  endorsed  thereupon.  An 
execution  against  property,  issued  upon  such  a  judg- 
ment, shall  not  be  levied  upon  the  sole  property  of  such 
a  defendant ;  but  it  may  be  collected  out  of  the  personal 
property  owned  by  him,  jointly  with  the  other  defend- 
ants, who  were  summoned,  or  with  any  of  them;  and 
out  of  the  real  and  personal  property  of  the  latter,  or 
of  any  of  them.     (Co.  Civ.  Proc.  §  1935). 

The  former  section  of  the  statute  from  which  this  is 
taken,  has  been  altered  by  changing  the  words  ''as  a 
partner"  to  "jointly,"  and  by  confining  the  remedy  to 
personal  property  which  the  defendants  owned  jointly, 
instead  of  extending  it  to  real  and  personal  property 
jointly  owned  by  the  defendants,  as  was  permitted  by 
section  one  hundred  and  thirty-six  of  the  code  of  pro- 
cedure. The  provisions  of  the  revised  statutes  in  that 
regard  have  been  restored.  Under  the  code  of  procedure 
a  judgment  entered  against  joint  debtors  where  all  were 
not  served,  could  be  enforced  only  against  property 
which  was  owned  by  all  the  defendants;  now,  how- 
ever, as  will  be  noticed,  it  may  be  collected  out  of  per- 
sonal property  owned  by  the  defendant  or  defendants 
summoned  jointly  with  all  of  the  defendants  or  with  any 
of  them. 

One  Avho  has  been  made  a  defendant  as  a  joint  debtor 
has  the  right  to  appear  in  the  action  even  though  the 
summons  has  not  been  served  upon  him.  (McLoughlin 
v.  Bicher,  26  Misc.  143).  An  attachment,  issued  in  an 
action  against  several  upon  a  joint  liability,  may  be  exe- 


4G0  PRACTICE. 

ciited  by  seizure  of  the  joint  property,  altluMiuli  the 
sniunious  is  served  upon  but  one  of  the  defendants. 
(Yerkes  v.  McFadden,  141  N.  Y.  136).  An  execution 
from  which  the  indorsement  required  by  section  IfKU  of 
the  code  has  been  improperly  omitted,  is  not  absolutely 
Toid,  but  ma}'  be  amended  on  motion.  {Crane  V. 
Cranitch,  3  Misc.  557).  A  judgment  against  several 
based  upon  a  service  on  one  has  no  force,  as  against 
those  not  served,  outside  of  the  jurisdiction  in  which  it 
is  granted.     {Hoffmun  v.  M'rifjlit,  1  App.  Div.  514). 

Sec.    2.    Action  to  charge  defendants  not  summoned. 

Subdivision   1. — When  such  Action   may   be   Main- 
tained. 

After  the  recovery  of  a  judgment  against  joint 
debtors,  as  prescribed  in  section  1932  of  the  code,  an 
action  may  be  maintained  by  the  judgment  creditor, 
against  one  or  more  of  the  defendants,  who  were  not 
summoned  in  the  original  action,  to  procure  a  judgment, 
charging  his  or  their  property  with  the  sum  remaining 
unpaid  upon  the  original  judgment.  (Co.  Civ.  Proc. 
§1937). 

This  section  is  a  substitute  for  section  three  hundred 
and  seventy-five  of  the  code  of  procedure.  The  precise 
nature  of  the  proceeding  Avhich  was  authorized  by  that 
section  of  the  code  of  procedure  is  somewhat  doubtful. 
In  Fairchild  v.  Durand  (8  Abb.  Pr.  305)  it  was  held 
that  it  was  a  proceeding  in  the  original  action.  The  bet- 
ter opinion,  however,  was  that  the  proceeding  was  a 
special  proceeding.  Whatever  it  may  have  been,  it  was 
held  that  the  provision  for  this  proceeding  was  cumu- 
lative; and  it  did  not  preclude  a  new  action  against  all 
the  defendants  after  judgment  had  been  entered  against 
those  who  were  summoned.  (Lane  v.  Salter,  51  N.  Y. 
1).  Whether  the  action  was  brought  under  section 
three  hundred  and  seventy-five  of  the  code  of  procedure, 
or  whether  a  new  action  was  brought,  it  was  not  an 
action  upon  the  judgment  so  as  to  require  the  plaintiff 
to  obtain  leave  to  sue.  [Dean  v.  Eldridge,  29  How.  Pr. 
218).    Under  the  code  of  civil  procedure,  the  proceeding 


ACTIONS   BY    OR   AGAINST   PARTICULAR   PARTIES.       4G1 

is  an  ordinary  civil  action,  commenced  by  the  service  of  a 
summons  in  the  usual  Avay.  It  may  be  brought  although 
an  appeal  has  been  taken  from  the  judgment  against 
those  served,  and  security  upon  the  appeal  given. 
[Morey  v.  Trace y,  92  N.  Y.  581).  The  second  action  is 
not  one  to  enforce  the  plaiutitt's  rights  under  the  origi- 
nal judgment,  or  to  obtain  the  fruits  of  that  judgment; 
the  sole  object  of  it  is  to  establish  the  liability  of  a  de- 
fendant, not  served,  upon  the  original  contract,  which 
was  not  determined  by  the  original  judgment,  and  of 
which  it  was  no  evidence.  The  plaintiff  cannot  rest  on 
the  original  judgment  to  maintain  this  action.  The 
liability  of  the  defendant  in  the  new  action  can  only  be 
established  by  evidence  aliunde.  (Morey  V.  Tracey,  92 
N.  Y.  581).  The  remedy  under  this  section  exists  only 
when  one  of  several  defendants  jointly  indebted  upon 
contract  has  been  named  in  the  original  complaint  as  a 
party  defendant,  and  has  not  been  served.  An  addi- 
tional defendant  cannot  be  brought  in  under  this  sec- 
tion. {Freeman  v.  Barrowcliffe,  44  N.  Y.  Super.  Ct. 
Rep.  313).  It  will  be  noticed,  however,  that  this  case 
was  decided  under  the  code  of  procedure,  and  it  may 
be  doubtful  whether  the  rule  it  lays  down,  is  now  the 
law.  In  that  case  an  action  was  brought  against  two 
persons  alleged  to  be  joint  debtors.  One  was  sued  by 
a  fictitious  name,  and  service  was  made  upon  him  and 
he  did  not  appear,  the  other  defendant  appeared  and  de- 
fended. The  judgment-roll  showed  an  absolute  judg- 
ment entered  upon  personal  service  of  the  summons  and 
complaint  on  the  i^erson  designated  by  the  fictitious 
name;  and  upon  the  one  against  Avhom  the  verdict  was 
rendered.  It  was  held  that  the  provisions  of  the  code  of 
procedure  did  not  apply,  because  in  the  first  place,  if 
the  person  summoned  to  show  cause  was  the  one  desig- 
nated by  the  fictitious  name,  the  record  showed  a  judg- 
ment against  him  already;  and  in  the  second  place  if 
he  was  not  the  person  designated  by  the  fictitious  name, 
then  he  was  not  a  party  to  the  original  action,  and  did 
not  come  within  the  provisions  of  the  code.  The  section 
does  not  apply  to  the  judgment  of  a  justice's  court, 
althouj?h    it   has   been   docketed    in    the    clerk's    office. 


462  PUACTICE. 

(Prince  v.  Cujas,  7  Kobt.  7G;  Ticknor  v.  Kennedy,  4  Abb. 
Pr.  N.  S.  417). 

The  remedy  in  such  a  case  as  that,  is  by  an  action 
bi'oiiiilit  in  the  usual  way  against  the  debtor  not  served, 
^vhic  li  should  state  the  fact  showing  the  liability  of  the 
defendant  in  the  new  action,  and  the  proceedings  which 
had  been  taken  in  the  former  action.  (Johnson  v. 
^niith,  14  Abb.  Pr.  ^21).  It  will  be  noticed  that  this 
decision  also  was  made  under  the  provisions  of  the  code 
of  procedure;  and,  while  the  law  is  probably  the  same 
theoretically  under  the  provisions  of  the  code  of  civil 
procedure  as  it  was  under  the  code  of  procedure,  still  as 
the  action  under  the  code  of  civil  procedure  is  an  ordi- 
nary action,  there  is  no  difference  in  practice  whether 
it  is  brought  under  the  provisions  of  this  section  or 
without  regard  to  it.  Proceedings  under  this  section 
are  not  proper  to  enforce  a  demand  against  the  heirs  of 
a  defendant  who  was  not  served.  The  defendants  not 
served  are  not  judgment  debtors  within  the  meaning  of 
the  statute  which  authorizes  the  summoning  of  the  per- 
sonal representatives  of  the  deceased  judgment  debtor 
to  show  why  judgment  should  not  be  enforced  against 
the  estate  of  the  judgment  debtor  in  their  hands.  (Fos- 
ter V.  Wood,  1  Abb.  Pr.  N.  S.  150).  Neither  can  such 
proceedings  be  resorted  to,  to  enforce  a  firm  liability 
against  the  executors  of  a  deceased  partner  who  was 
not  served,  unless  the  executors  had  themselves  become 
liable  as  partners.  (Richtcr  v.  Popjienhausen,  42  N.  Y. 
373).  If  the  plaintiff  has  assigned  the  judgment,  the 
assignee  may  maintain  this  action  either  in  the  name  of 
the  original  plaintiff  or  may  cause  himself  to  be  substi- 
tuted as  plaintiff.  (Merchants'  Exch.  Nat.  Bank  v. 
Waitzf elder,  14  Hun,  47). 

Subdivision  2. — Pleadings  and  Proceedings. 

The  complaint  in  such  an  action  must  be  verified; 
must  contain  an  allegation  that  the  judgment  has  not 
been  paid;  and  must  state  the  sum  remaining  unpaid 
thereupon,  at  the  time  of  the  verification.  (Co.  Civ. 
Proc.  §  1938). 


ACTIONS   BY    OK   AGAINST    PARTICULAR   PARTIES.       463 

Under  the  code  of  procedure  no  complaint  was  re- 
quired, but  simply  an  affidavit  annexed  to  the  summons 
to  show  cause.  Under  the  provisions  of  that  code  it 
was  held  that  it  was  sufficient  to  accompany  the  sum- 
mons by  the  affidavit  of  the  plaintiff  that  the  judgment 
has  not  been  satisfied  and  by  a  statement  of  the  amount 
due  upon  it.  {Harper  v.  Bangs,  18  How.  Pr.  457).  It 
is  quite  clear,  however,  that  that  is  not  sufficient  under 
the  code  of  civil  procedure.  The  cause  of  action  does 
not  arise  upon  the  judgment  against  the  joint  debtor 
who  is  served.  {Oakley  v.  Aspinwall,  4  N.  Y.  514).  In 
the  case  last  cited  Judge  Bronson  says  that  the  plain- 
tiff, upon  bringing  his  action  against  the  debtor  not 
served,  should  state  in  the  usual  way  that  he  had  a  de- 
mand arising  upon  contract,  to  which  might  have  been 
added,  if  it  was  deemed  a  matter  of  any  importance, 
that  he  had  obtained  a  judgment  for  the  amount  in  a 
suit  wherein  the  defendant  did  not  appear  and  was  not 
served  with  process.  (Id.  518).  The  plaintiff  in  this 
action  should  allege  the  cause  of  action  as  it  originally 
existed,  and  the  recovery  of  the  judgment  in  the  action 
against  the  debtor  who  was  served,  and  then,  in  com- 
pliance with  the  provisions  of  the  section  last  cited,  he 
should  allege  that  the  judgment  has  not  been  paid,  and 
should  state  the  sum  remaining  unpaid  upon  it. 

The  defendant's  answer  is  restricted  to  defenses  or 
counterclaims,  which  he  might  have  made  in  the  origi- 
nal action,  if  the  summons  therein  had  been  served  upon 
him,  when  it  was  first  served  upon  a  defendant  jointly 
indebted  with  him;  objections  to  the  judgment;  and  de- 
fenses or  counterclaims,  which  have  arisen  since  it  was 
rendered.     (Co.  Civ.  Proc.  §  1939). 

The  defendant  in  this  action  may  make  the  same  de- 
fense or  set  up  the  same  counterclaims  which  he  might 
have  alleged  in  the  original  action,  if  the  summons  had 
been  served  upon  him  then  {Richardson  v.  Case,  3  Civ. 
Proc.  Rep.  295)  ;  and  is  not  concluded  by  the  fact  that 
the  person  served  in  the  original  action  was  unsuccess- 
ful in  his  effort  to  maintain  the  same  defense  set  up  in 
the  subsequent  action.  {Bath  Gas  Light  Co.  V.  Row- 
land, 84  App.  Div.  563).     Under  the  code  of  procedure 


J:04  i'UACTlCE. 

it  was  at  one  time  held  that  a  defeiidaiit  sued  under 
this  provision  could  not  set  up  the  statute  of  limitations, 
althoujih  it  had  run  against  the  claim  before  service  of 
the  oriiiinal  process  upon  his  codefendant  (Berlin  V. 
Hall,  48  Barb.  442)  ;  the  rule,  however,  now  is  that  the 
defendant  may  set  up  the  statute  of  limitations  if  it 
would  have  been  a  defense  when  the  original  action  was 
begun,  had  the  complaint  then  been  served  upon  him 
(Co.  Civ.  Proc.  §  1039 ;  Maples  v.  Maclcey,  89  N.  Y.  146)  ; 
but  the  fact  that  the  action  upon  the  original  contract 
would  have  been  barred  by  the  statute  of  limitation  at 
the  time  that  the  action  was  commenced  against  him, 
constitutes  no  defense,  provided  that  the  statute  had 
not  run  against  the  claim  when  the  summons  was  served 
in  the  original  action.     {Maples  v.  Maclcey,  supra). 

So,  if  the  statute  of  limitations  had  not  i-un  against 
the  claim  when  the  summons  was  served  in  the  original 
action,  the  debtor  sued  in  the  second  action  cannot  inter- 
pose it,  however  long  the  time  that  may  have  elapsed 
since  the  commencement  of  the  first  action.  ( Gibson  V. 
Van  Derzee,  14  Abb.  Pr.  N.  S.  Ill ;  Kramer  v.  Schatzkin, 
27  Misc.  206).  The  objections  to  the  judgment  which 
nmy  be  taken  upon  this  proceeding  are  such  as  go  to  its 
validity  and  binding  efficacy  (Long  v.  Stafford,  103 
N.  Y.  274)  ;  but  the  defendant  is  bound  to  raise  these 
objections  in  the  proper  way;  and  if  they  are  only  such 
as  go  to  the  regularit}"  of  the  judgment,  and  do  not 
affect  the  jurisdiction  of  the  court,  they  are  waived  by 
joining  issue  upon  the  allegations  of  the  complaint, 
with(jut  moving  to  vacate  the  judgment  on  account  of 
them.  {Decker  v.  Kitchen,  26  Hun,  173).  Such  ob- 
jections also  include  defenses  Avhieh  have  arisen  since 
the  entry  of  the  judgment,  such  as  payment,  release,  or 
a  discharge  in  bankruptcy,  or  the  like.  {Gibson  v.  Van 
Derzee,  14  Abb.  Pr.  N.  S.  Ill,  114;  Burlze  v.  Fhillips, 
20  Misc.  413). 

There  is  some  question  as  to  the  effect  of  the  former 
judgment  in  the  second  action.  The  code  of  civil  proce- 
dure (§  1933)  says  that  while  the  judgment  is  conclu- 
sive evidence  of  the  liability  of  each  defendant  upon 


ACTIONS   BY    OR   AGAINST   PARTICULAR   PARTIES.       465 

whom  the  summons  was  personally  served,  or  who  ap- 
peared in  the  action,  it  is,  as  against  other  defendants 
who  are  allowed  to  defend  after  judgment,  or  who  were 
not  summoned,  evidence  only  of  the  extent  of  the  plain- 
tiff's demand,  after  the  liability  of  the  other  defendants 
has  been  established  by  other  evidence.  In  Oakley  v. 
Aspinivall  (4  N.  Y.  514)  Judge  Bronson  says  that  in 
this  action,  the  former  judgment  has  no  weight  what- 
ever as  evidence,  and  that  it  adds  no  force  to  the  claim. 
(Id.  p.  518).  In  the  same  case  Judge  Mullett  says 
(p.  530),  that  the  judgment  is  not  evidence  of  its  own 
verity  or  existence  for  the  purpose  of  establishing  the 
liability  of  those  who  were  not  brought  into  court  under 
it,  or  of  changing  the  nature  or  character  of  that  lia- 
bility. In  a  later  case  it  was  said  that  the  plaintiff  in 
the  second  action  cannot  rest  on  the  judgment  in  the 
first,  to  maintain  his  action.  {Morey  v.  Tracey,  92 
N.  Y.  581,  583).  The  judgment  roll  is,  however,  ad- 
missible in  evidence  in  the  second  action,  under  section 
1933  of  the  code,  as  evidence  of  the  extent  of  the  plain- 
tiff's demand.  (Vereinigte  Pinsel-Fahriken  v.  Rogers, 
52  App.  Div.  529).  The  plaintiff  may  recover  in  the 
second  action  less  but  not  more  than  the  amount  which 
is  unpaid  upon  the  judgment.  {Oakley  v.  Aspinwall, 
4  N.  Y.  514,  518).  The  rules  of  procedure  in  other 
actions  of  the  same  nature  apply  to  actions  brought 
under  this  section. 

For  the  purpose  of  obtaining  an  order  of  arrest,  an 
injunction  order,  or  a  warrant  of  attachment,  the  action 
is  regarded  as  being  founded  upon  the  contract,  upon 
which  the  original  judgment  was  recovered.  (Co.  Civ. 
Proc.  §  1940). 

Subdivision  3. — Judgment. 

Where  the  judgment  is  in  favor  of  the  plaintiff,  it 
must  determine  the  sum  remaining  unpaid  upon  the 
original  judgment;  and  it  may  be  docketed,  and  an 
execution  may  be  issued  thereupon,  as  if  it  was  a  judg- 
ment for  the  sum  so  remaining  unpaid,  and  the  costs,  if 
30 


466  PRACTICE. 

any.  Costs  must  be  awarded,  as  if  the  action  was 
brought  upon  the  original  contract,  and  the  sum  so 
remaining  unpaid  had  been  recovered  therein.  (Co. 
Civ.  Proc.  §1941). 

The  entry  of  judgment  against  a  defendant  in  this 
action  in  the  same  form  as  if  the  original  action  had 
been  brought  against  him  alone,  is  proper.  {Decker  v. 
Kitchen,  2G  Hun,  173). 

Sec.    3.   Action   against  partner  not  sued. 

Where, for  any  cause,  one  or  more  partners  have  not 
been  joined  as  defendants  in  an  action  upon  a  partner- 
ship liability,  and  final  judgment  has  been  taken  against 
the  persons  made  defendants  therein,  the  plaintiff,  if 
the  judgment  remains  unsatisfied,  may  maintain  a 
separate  action  upon  the  same  demand,  against  each 
omitted  partner,  setting  forth  in  the  complaint  the  facts 
specified  in  this  section,  as  well  as  the  facts  constituting 
his  cause  of  action  upon  the  demand.  (Co.  Civ.  Proc. 
§  1946). 

This  section  changes  entirely  the  rule  as  it  existed  at 
common  law.  {Siefke  v.  Minden,  40  Misc.  631).  It 
was  thoroughly  settled  at  common  law  that,  when  the 
plaintiff  had  proceeded  to  judgment  against  one  of  two 
joint  promisors,  the  debt  was  merged  in  the  judgment 
against  that  one,  and  no  action  could  thereafter  be 
maintained  against  the  joint  debtor  {Robertson  v. 
Smith,  18  Johns.  459),  though  whenever  the  creditor 
had  separate  judgments  against  each  of  two  partners, 
the  partnership  property  was  bound  to  the  same  extent 
as  if  the  amount  of  both  judgments  had  been  included 
in  a  joint  judgment  for  the  whole  against  both  partners. 
{Brinlcerhoff  v.  Marvin,  5  Johns.  Ch.  320). 

Sec.    4.    Continuance    of   business    during    action   for    partner- 
ship   accounting. 

In  an  action  brought  to  dissolve  a  partnership,  or  for 
an  accounting  between  partners,  or  affecting  the  con- 
tinued prosecution  of  the  business,  the  court  may,  in  its 
discretion,  by  order,  authorize  the  partnership  business 
to  be  continued,  during  the  pendency  of  the  action  by 


ACTIONS  BY  OR  AGAINST  PARTICULAE  PARTIES.   467 

one  or  more  of  the  partners,  upon  their  executing  and 
filing  with  the  clerk  an  undertaking,  in  such  a  sum  and 
with  such  sureties  as  the  order  prescribes,  to  the  effect 
that  they  will  obey  all  orders  of  the  court,  in  the  action, 
and  perform  all  things  which  the  judgment  therein 
requires  them  to  perform.  The  court  may  impose  such 
other  conditions,  as  it  deems  proper,  and  it  may  in  its 
discretion  at  any  time  thereafter  require  a  new  under- 
taking to  be  given.  The  court  may  also  ascertain  the 
value  of  the  partnership  property,  and  of  the  interest  of 
the  respective  partners  by  a  reference  or  otherwise,  and 
may  direct  an  accounting  between  any  of  the  partners; 
and  the  judgment  may  make  such  provision  for  the  pay- 
ment to  the  retiring  partners,  for  their  interest,  and 
with  respect  to  the  rights  of  creditors,  the  title  to  the 
partnership  property,  and  otherwise,  as  justice  requires, 
with  or  without  the  appointment  of  a  receiver,  or  a  sale 
of  the  partnership  property.     (Co.  Civ.  Proc.  §  1947). 

The  application  for  the  order  under  this  section  must 
be  made  at  special  term  on  the  usual  notice,  and  upon 
affidavits  showing  the  gi'ound  upon  which  the  applica- 
tion is  made. 

Where  in  an  action  for  a  partnership  accounting  a 
motion  for  a  receiver  is  made  by  plaintiff,  the  court 
upon  denying  the  motion  has  power,  under  the  prayer 
for  general  relief,  to  make  an  order  authorizing  defend- 
ants to  continue  the  business  upon  the  conditions  stated 
in  the  above  section.  [PhUipp  v.  Von  Raven,  26  Misc. 
552).  See,  also,  Kirkivood  v.  Smith  (64  App.  Div. 
615),  where  an  order  under  this  section  was  directed. 


ARTICLE  IV. 

COMPROMISE   BY    JOINT  DEBTORS. 

A  joint  debtor  may  make  a  separate  composition  Avith 
his  creditors,  as  prescribed  in  this  section.  Such  a  com- 
position discharges  the  debtor  making  it ;  and  him  only. 
The  creditor  must  execute  to  the  compounding  debtor  a 
release  of  the  indebtedness,  or  other  instrument  exon- 


468  PRACTICE. 

erating  him  tlierefroui.  A  meiiibci'  of  a  partnership 
cannot  thus  compound  for  a  partnership  debt,  until  the 
partnership  has  been  dissolved  by  consent  or  otherwise. 
In  that  case  the  instrument  must  release  or  exonerate 
him,  from  all  liability,  incurred  by  reason  of  his  con- 
nection with  the  partnership.  An  instrument,  speci- 
fied in  this  section,  does  not  impair  the  creditor's  rij^ht 
of  action  against  any  other  joint  debtor,  or  his  right  to 
take  any  proceeding  against  the  latter;  unless  an  intent 
to  release  or  exonerate  him,  appears  affirmatively  upon 
the  face  thereof.      (Co.  Civ.  Proc.  §  1942). 

At  common  law  a  release  of  one  of  several  joint 
debtors  or  wrong  doers  discharged  all.  The  reason  was 
that  the  deed  being  taken  most  strongly  against  the 
releasor  was  conclusive  evidence  that  he  had  been  satis- 
fied ;  and  after  satisfaction  of  a  claim,  although  by  one 
joint  debtor  only,  no  foundation  remained  for  the  action 
against  any  other  one  jointly  liable.  {Bronson  v.  Fitz- 
hugli,  1  Hill,  185).  To  have  that  effect,  however,  the 
release  had  to  be  a  technical  release  under  seal ;  a  mere 
parol  agreement  was  not  sufficient.  {Dc  Zeng  v.  Bailey, 
9  Wend.  336 ) .  The  legal  effect  of  a  technical  release  of 
one  joint  debtor  could  not  be  controlled  by  an  unsealed 
written  agTeement  of  another  joint  debtor  (although 
delivered  at  the  same  time  as  the  release)  to  the  effect 
that  the  release  should  not  impair  his  liability.  {Bron- 
son v.  Fitzliurih,  supra).  The  same  effect  was  not  given, 
however,  to  a  covenant  not  to  sue  one  joint  debtor  or 
wrongdoer;  although,  to  avoid  circuity  of  action,  there 
was  given  to  such  covenant  the  effect  of  a  release.  Al- 
though the  party  with  whom  the  covenant  was  made 
was  practically  released  from  further  liability,  yet  the 
other  joint  debtors  remained  liable  as  though  no  cove- 
nant had  been  made.  {Broton  v.  Williams,  4  Wend. 
360 ;  Couch  v.  Mills,  21  Wend.  424) .  To  give  this  effect 
to  a  release  of  one  joint  debtor,  however,  was  almost 
always  inconsistent  with  the  intention  of  the  parties; 
and,  therefore,  in  1838,  an  effort  was  made  by  the  legis- 
lature to  change  the  effect  of  the  release,  by  permitting 
one  partner  or  joint  debtor  to  compound  and  obtain  a 
several   discharge   of   his   liability,   which    should   not 


ACTIONS   BY   OR   AGAINST   PARTICULAR   PARTIES.       469 

affect  the  right  to  pursue  others  who  were  jointly  liable 
with  him.  (Laws  1838,  chap.  257).  It  has  been  said 
that  this  statute  did  not  contemplate  the  giving  of  a 
technical  release  {Bank  of  Foughkeepsie  v.  Ihhotson, 
5  Hill,  461)  ;  but  if  an  absolute  release  was  made  of  one 
debtor  under  seal,  it  operated  to  release  all  other  joint 
debtors,  unless  it  was  qualified  by  a  reference  to  the 
statute.  (Id. ;  Hoffman  v.  Dunlop,  1  Barb.  185).  The 
equitable  rule  now  prevails,  and  a  release  is  to  be  con- 
strued according  to  the  intent  of  the  parties  and  the 
object  of  the  instrument,  and  that  intent  will  control 
and  limit  its  operation  ( Whittemore  v.  Judd  Linseed  Oil 
Co.,  124  N.  Y.  565,  574)  ;  and  a  provision  contained  in  a 
release  that  it  shall  not  operate  to  release  any  other  joint 
debtor  than  the  one  to  whom  it  is  given  limits  its  effect 
to  such  joint  debtor  (Hood  v.  Hayioard,  124  N.  Y.  1,  12; 
Harheck  v.  Pupin,  123  N.  Y.  115;  Booth  Bros.  v.  Baird, 
83  App.  Div.  495)  ;  nor  does  it  make  any  difference  that 
judgment  had  been  recovered  against  the  joint  debtor 
released.  {Siefke  v.  Minden,  40  Misc.  631).  In  Finch 
V.  Simons  (61  App.  Div.  139)  it  was,  however,  held  that 
where  the  plaintiff  in  an  action  brought  against  the 
members  of  a  partnership,  which  had  not  been  dissolved, 
released  one  of  the  partners  by  instrument  under  seal 
from  all  claims  against  him,  individually  and  as  co- 
partner, upon  the  obligation  in  suit,  the  other  partners 
were  thereby  discharged.  The  release  of  one  of  the 
judgment  debtors  from  a  judgment  recovered  against 
the  members  of  a  partnership,  prevents  the  subsequent 
appointment  in  supplementary  proceedings  of  a  receiver 
of  the  firm  assets.  (Hunter  v.  Hunter,  67  App.  Div. 
470).  Section  1942  does  not  apply  to  an  instrument 
releasing  one  of  two  joint  contractors  from  an  agree- 
ment to  purchase  property,  prior  to  any  breach  of  the 
agreement,  and  the  other  contractor  is  released  thereby 
(Van  Dam  v.  Tapscott,  40  App.  Div.  36)  ;  nor  does  it 
save  the  right,  after  a  release  of  the  principal  debtor,  to 
proceed  against  one  known  to  be  merely  a  surety,  even 
though  judgment  has  been  recovered  against  both. 
[Matter  of  Broiiyne,  35  Misc.  362).  After  a  judgment 
has  been  rendered  against  several  tort-feasors,  they  be- 


470  PRACTICE. 

come  joint  debtors  witliin  this  statute;  and  a  release  ot 
one  will  not  discharge  all.  {In-ine  v.  Mlllbank,  36 
N.  Y.  Super.  Ct.  Rep.  264;  affd.,  15  Abb.  Pr.  N.  S.  378). 
It  was  held  in  a  nu'niber  of  cases  in  the  supreme  court 
that  the  statute  did  not  apply  to  tort-feasors  before 
judgment;  and  that  a  release  of  one  of  several  of  them 
by  parol  before  judgment  operated  to  release  all,  though 
it  is  expressly  provided  that  it  should  not  do  so. 
{Mitchell  V.  Allen,  25  Hun,  543;  DeLong  v.  Curtis,  35 
Hun,  94;  Brogan  V.  Ha  nan,  55  App.  Div.  92)  ;  and  in 
Brcslln  v.  Feck  (38  Uuu,  623)  it  was  held  that  where, 
separate  judgments  had  been  rendered  against  two 
wrongdoers  for  the  same  tort,  and  one  judgment  had 
been  satisfied,  it  operated  as  a  discharge  of  the  other. 
But  the  court  of  appeals  has  recently  declared  the  rule 
to  be  that,  where  the  release  given  to  one  contains  no 
reservation,  it  operates  to  discharge  all  the  joint  tort- 
feasors; but  where  the  instrument  expressly  reserves 
the  right  to  pursue  the  others,  they  are  not  discharged. 
{Gilbert  v.  Finch,  173  N.  Y.  455). 

An  instrument,  specified  in  section  1942,  is  deemed 
a  satisfaction-piece,  for  the  purpose  of  discharging,  as 
prescribed  in  section  1260  of  the  code,  the  docket  of  a 
judgment,  recovered  upon  an  indeV)tedness  released  or 
discharged  thereby,  as  far  as  the  judgment  affects  the 
compounding  debtor.  Where  the  docket  of  a  judgment 
is  discharged  thereupon,  a  special  entry  must  be  made 
upon  the  docket,  to  the  effect,  that  the  judgment  is  satis- 
fied, as  to  the  compounding  debtor  only.  (Co.  Civ. 
Proc.  §  1943). 

The  proper  course  to  procure  a  discharge  of  a  judg- 
ment under  this  section  is  to  present  to  the  clerk  the 
instrument  mentioned  in  it  and  request  him  to  satisfy 
the  judgment  as  to  the  debtor  who  has  compromised. 
If  the  clerk  refuses  to  do  so,  an  application  may  be 
made  to  the  court  for  an  order  directing  him  to  do  so. 
Such  application  may  be  made  upon  notice  to  the  par- 
ties who  are  interested  in  having  the  judgment  dis- 
charged; or  the  court,  upon  the  application  being  made 
ex  parte,  will  direct  to  whom,  and  in  what  manner  the 


ACTIONS  BY   OR  AGAINST  PARTICULAR  PARTIES.       471 

notice  of  the  application  shall  be  given.      {Faulkner  v. 
Buy  dam,  7  Robt.  614). 

Where  a  joint  debtor  has  thus  compounded,  a  joint 
debtor,  who  has  not  compounded,  may  make  any  de- 
fense or  counterclaim,  or  have  any  other  relief,  as 
against  the  creditor,  to  which  he  would  have  been  en- 
titled, if  the  composition  had  not  been  made.  He  may 
require  the  compounding  debtor  to  contribute  his  rata- 
ble proportion  of  the  joint  debt,  or  of  the  partnership 
debts,  as  the  case  may  be,  as  if  the  latter  had  not  been 
discharged.      (Co.  Civ.  Proc.  §  1944). 


CHAPTER  LX. 

ACTION    AGAINST    USURPER   OF   AN    OFFICE    OR    FRANCHISE. 


ARTICLE  1.  .  .When  action  may  be  maintained. 
ARTICLE  II. .  .Proceedinsts  in  tho  action. 


ARTICLE  I. 

WHEN   ACTION   MAY   BE   MAINTAINED. 

SECTION. 

1.  Nature  of  the  action. 

2.  In  what  cases  it  may  be  brought. 

Sec.    1.    Xature  of  tlie  action. 

This  action  is  the  same  in  substance  as  the  proceed- 
ings under  the  old  writ  of  quo  warranto.  The  writ  of 
quo  warranto  and  proceedings  by  information  in  the 
nature  of  quo  tvarranto  have  been  abolished.  The  re- 
lief formerly  obtained  by  means  of  such  a  wTit  may  now 
be  obtained  by  action.  (Co.  Civ.  Proc.  §  1983).  This 
section  is  the  same  as  section  four  hundred  and  twenty- 
eight  of  the  code  of  procedure.  While  the  statute 
has  abolished  the  writ  of  quo  tvarranto,  it  is  only 
the  form  of  that  writ  that  was  abolished;  the  juris- 
diction and  the  power  of  the  courts  to  deal  with 
the  subject  matter  of  the  proceeding  have  not  been 
disturbed,  or  even  touched.  The  same  results,  through 
the  form  of  an  action  against  the  usurper  of  an 
office  or  franchise,  may  now  be  reached,  as  formerly 
were  reached  by  means  of  the  assistance  of  a  writ  of 
quo  tvarranto;  the  right  to  the  remedy  which  was  form- 
erly afforded  by  that  writ  still  remains.  {People  ex  rel. 
Eatzel  V.  Eall,  80  N.  Y.  117;  People  ex  rel.  Jtulson  v. 
Thaeher,  55  N.  Y.  525). 

The  action  provided  by  the  code  of  civil  procedure 
(Co.  Civ.  Proc.  §§  1948-1956)  is  the  remedy  now  given 

(473) 


474:  PRACTICE. 

in  such  cases;  ami  it  is  au  action  strictly  le«»al  in  its 
nature,  and  not  of  e(|uital)le  co«];nizance;  and  the  issues 
raised  in  such  an  action  are  strictly  legal  ones.  No 
cases  can  be  found,  at  least  under  the  more  recent 
statutes,  in  which  the  title  to  an  office  or  franchise  has 
been  dealt  with  by  the  courts  on  any  other  basis  than 
those  resting  on  purely  legal  principles;  and  the  courts 
have  even  gone  so  far  as  to  deny  the  jurisdiction  of 
courts  of  equity  in  this  class  of  action.  {PcoplG  ex  rel. 
Corscaddcn  v.  Howe,  111  N.  Y.  499). 

The  action  against  one  who  has  unlawfully  intruded 
into  an  office,  is  the  same  as  the  former  information  in 
the  nature  of  a  quo  tvarranto  under  the  revised  statutes. 
(2  Rev.  Stat.  581;  §  28;  People  v.  Piatt,  10  N.  Y.  St. 
Rep.  717).  In  the  action  now  provided  by  the  code  in 
such  cases,  the  parties  stand  in  the  same  relation  to  each 
other  as  in  a  civil  action.  {People  v.  Cook,  8  N.  Y.  67, 
71).  The  action  is  governed  by  the  same  rules  which 
applied  to  the  proceedings  under  the  former  practice, 
excepting  so  far  as  by  statute  they  have  been  modified. 

The  writ  of  quo  tcarranto  was  in  the  nature  of  a  writ 
of,  or  in  behalf  of,  the  king  against  him  who  claimed  or 
usurped  an  office,  franchise  or  liberty,  to  inquire  by 
what  authority  he  supported  his  claim,  in  order  to  de- 
termine his  right.  (3  Bl.  Comm.  262).  In  no  respect 
have  the  foundation  principles  changed  from  the  time 
that  definition  was  written  until  now;  and  the  very  gist 
of  the  action  provided  by  the  code  is  the  inquiry,  by  the 
law  officer  of  the  state,  upon  what  authority  or  warrant 
the  defendant  holds  the  office  into  which  he  has  in- 
truded. It  furnishes  the  only  remedy  for  trying  the 
title  to  the  office.  {Morris  v.  Whelan,  64  How.  Pr. 
109).  The  right  to  the  office  cannot  be  tried  collater- 
ally; but  it  must  be  determined  in  an  action  brought 
for  that  specific  purpose.  Thus,  in  an  action,  where  the 
case  was  submitted  upon  agreed  facts  under  section 
1279  {ct  scq.)  of  the  code,  where  the  cause  of  action 
alleged  was  that  the  defendant  had  received  salary  to 
which  the  plaintiff  believed  himself  to  be  entitled,  on 
the  gTound  that  the  defendant  had  usurped  an  office 
to  which  the  plaintiff  had  been  appointed;  the  court 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.      475 

held  that  the  question  of  title  to  the  office  could  not  be 
determined  in  that  action;  and  that  while  the  right  to 
the  salary  depended  on  the  right  to  hold  the  office,  that 
question  could  only  be  settled  in  the  manner  prescribed 
by  the  code,  viz.,  in  an  action  brought  by,  or  in  the  name 
of,  the  people  to  test  the  right  and  title  of  the  defendant 
to  the  office  so  held  by  him ;  and  that  could  not  be  tried 
or  determined  in  a  collateral  or  incidental  way  in  an 
action  for  the  salary.  ( City  of  Buffalo  v.  Machay,  15 
Hun,  204).  The  provisions  of  the  code  not  only  fur- 
nish the  only  remedy  for  ascertaining  the  right  to  an 
office,  but  by  implication  at  least,  prohibit  the  trial  of 
that  question  in  any  other  manner.  {Falmer  v.  Foley, 
45  How.  Pr.  110).  See,  also,  the  cases  cited  in  section  2 
of  this  article. 

There  is,  however,  one  exception  to  the  general  rule 
on  this  point  in  the  case  of  the  summary  remedy  given 
by  statute  (General  Corporation  Law,  §  27)  respecting 
the  election  of  officers  of  an  incorporated  company. 
{City  of  Buffalo  v.  Maclcay,  supra).  In  a  private 
action  to  recover  for  salary  alleged  to  have  been  paid 
to  one  who  has  wrongfully  usurped  an  office,  while  the 
court  may  be  satisfied  that  the  defendant  is  not  entitled 
to  the  office,  and  that  the  plaintiff  is  entitled  to  it,  yet 
it  cannot  in  such  action  oust  the  defendant;  and  it  may 
happen  in  such  a  case  that  the  court  will  be  obliged  to 
dismiss  the  complaint,  until  after  the  party  entitled  to 
the  office  has  complained  to  the  attorney-general  and 
had  the  proper  action  brought  and  that  question  deter- 
mined in  the  way  provided  by  law ;  and  in  the  meantime 
allow  the  intruder  all  the  rights  of  one  actually  entitled 
to  the  office.      (Id.). 

The  court  is  given  jurisdiction  in  all  cases  where  the 
question  of  title  to  office  arises;  and  that  jurisdiction  is 
not  taken  awa}',  although  the  legislature  gives  to  a 
board,  as  the  board  of  aldermen  of  a  city,  the  right  to  be 
the  judge  of  the  election  of  its  oAvn  members;  that  power 
is  merely  concurrent  with  the  right  of  the  court  to  deter- 
mine whether  a  person  was  legally  or  actually  elected  to 
the  office  which  he  holds.  If,  however,  a  party  proceeds 
before  the  board  and  such  board  decides  against  him,  he 


4  70  PRACTICE. 

cannot  afterwards  appeal  to  the  courts;  and  on  the 
other  hand,  if  he  invokes  the  aid  of  the  court,  its  judg- 
ment is  conclusive  upon  the  relator  {McVeany  v.  Mayor, 
etc.,  of  New  York,  80  N.  Y.  185)  ;  although  such  a  de- 
cision against  the  relator,  is  not  conclusive  upon  the 
people  of  the  state;  and  they  may  by  their  attorney- 
general  proceed  against  the  usurper,  as  though  no 
action  had  been  brought.  {Feo])le  ex  rel.  Hatzel  v. 
Hall,  80  N.  Y.  117).  For  it  always  remains  with  the 
people  to  see  that  only  such  as  are  entitled  to  them, 
hold  public  offices ;  and  then  only  on  condition  that  they 
use  the  office  lawfully  and  for  the  good  of  the  public; 
for  when  an  officer,  although  he  came  lawfully  into  pos- 
session of  an  office,  does  or  suffers  an  act  Avhich  works 
a  forfeiture  of  his  office  the  people  may  proceed  against 
him  and  oust  and  exclude  him  therefrom,  and  punish 
him  by  fine.      (Co.  Civ.  Proc.  §  1948,  subd.  2,  §  1956). 

Sec.    2.    In  \irliat  cases  it  may  be  bronglit. 

The  attorney-general  may  maintain  an  action  upon 
his  own  information,  or  upon  the  complaint  of  a  pri- 
vate person,  in  either  of  the  following  cases : 

1.  Against  a  person  who  usurps,  intrudes  into,  or  un- 
lawfully holds  or  exercises  within  the  state,  a  franchise, 
or  a  public  office,  civil  or  military,  or  an  office  in  a 
domestic  corporation. 

2.  Against  a  public  officer,  civil  or  military,  who  has 
done  or  suffered  an  act  which  by  law  Avorks  a  forfeiture 
of  his  office. 

3.  Against  one  or  more  persons  who  act  as  a  corpora- 
tion, within  the  state,  without  being  duly  incorporated; 
or  exercise  within  the  state,  any  corporate  rights,  privi- 
leges, or  franchises,  not  granted  to  them  by  the  law  of 
the  state. 

4.  Against  a  foreign  corporation  which  exercises 
within  the  state  any  corporate  rights,  privileges  or 
franchises,  not  granted  to  it  by  the  law  of  this  state;  or 
which  within  the  state  has  violated  any  provision  of 
law,  or,  contrary  to  law^,  has  done  or  omitted  any  act,  or 
has  exercised  a  privilege  or  franchise,  not  conferred 
upon  it  by  the  law  of  this  state,  where,  in  a  similar  case, 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.      477 

a  domestic  corporation  would,  in  accordance  with  sec- 
tion 1798  of  this  act,  be  liable  to  an  action  to  vacate  its 
charter  and  to  annul  its  existence;  or  which  exercises 
within  the  state  any  corporate  rights,  privileges  or  fran- 
chises in  a  manner  contrary  to  the  public  policy  of  the 
state.      (Co.  Civ.  Proc.  §  1948). 

Where  two  or  more  persons  claim  to  be  entitled  to  the 
same  ofl&ce  or  franchise,  the  attorney-general  may  bring 
the  action  against  all,  to  determine  their  respective 
rights  thereto.      (Co.  Civ.  Proc.  §  1954). 

The  remedy  provided  by  the  sections  above  quoted, 
for  testing  by  a  direct  action  the  title  of  officers,  whether 
public  officers  or  officers  of  a  domestic  corporation,  is 
exclusive;  and  persons  other  than  officers  de  facto  or 
de  jure  cannot  be  proceeded  against ;  nor  can  the  action 
be  brought  against  one  merely  claiming  the  office;  for 
until  he  actually  usurps  or  intrudes  into,  or  unlawfully 
holds  or  exercises  the  office,  no  cause  of  action  arises 
against  him.  (Co.  Civ.  Proc.  §  1948).  The  proceed- 
ings will  lie  only  where  the  party  proceeded  against  is  a 
de  facto  or  de  jure  officer  and  is  in  possession  of  the 
office.  {People  ex  rel.  Kelly  v.  Common  Council  of 
Brooklyn,  77  N.  Y.  503;  Clapp  v.  Guy,  31  App.  Div. 
535).  It  will  not  lie  until  after  the  commencement  of 
the  term  of  office;  for  as  the  judgment  of  the  court  can 
only  be  for  the  ouster  of  the  defendant,  it  follows  that 
it  cannot  be  granted  until  the  defendant  is  actually  in 
possession  of  the  office;  for  he  cannot  be  ousted  from  an 
office  he  was  never  in.  [People  ecc  rel.  Martin  v.  Mc- 
Cullough,  11  Abb.  Pr.  N.  S.  129).  A  mere  claim  to  the 
right  to  exercise  an  office  at  some  future  time  is  not 
sufficient;  and  if  the  action  is  brought  before  an  actual 
usurpation  of  the  office,  it  is  premature.  (Id.).  So 
also  in  case  of  a  corporation,  the  action  cannot  be  main- 
tained to  try  the  title  of  its  officers,  by  means  of  an 
action  brought  ostensibly  to  enforce  an  obligation  in 
favor  of  the  company.  {Hudson  River,  W.  8.  R.  R.  Co. 
V.  Kay,  14  Abb.  Pr.  N.  S.  191). 

In  an  action  brought  for  a  cause  prescribed  in  section 
1948  (above  cited)  the  people  are  a  necessary  party, 
whether  the  action  is  one  for  that  purpose  directly  or 


478  PRACTICE. 

not.  {Morris  v.  Whclan,  64  How.  Pr.  109).  An 
action  in  the  nature  of  a  quo  warranto  does  not  lie 
against  an  officer  who  merely  holds  his  office  at  the  will 
of  a  board  of  directors,  and  as  their  servant,  as  in  case 
of  the  secretary  or  treasurer  of  a  railroad  company 
(People  ex  rel.  McVonviUe  v.  Hills,  1  Lans.  202)  ;  but 
it  lies  against  a  person  who  has  intruded  into  the  office 
of  director  of  a  corporation.  {People  ex  rel.  Israel  v. 
Tihhits,  4  Cow.  358).  A  claimant  to  a  municipal  office 
cannot  maintain  an  action  in  his  own  name;  nor  can 
such  an  action  be  brought  on  his  relation,  when  it  does 
not  appear  that  any  person  claims  the  office  in  hostility 
to  him,  or  that  there  has  been  any  interference  by  the 
defendant  with  his  legal  rights  as  officer.  {Demarest 
V.  Wickham,  G3  N.  Y,  320).  The  party  in  possession 
of  the  office  cannot  resort  to  this  form  of  action  to  pre- 
vent a  claimant  from  seeking  to  have  proceedings 
brought  to  oust  him.  He  cannot  be  the  plaintiff ;  as  he 
suffers  no  injury,  until  an  action  is  brought  against 
him.  Therefore  he  cannot  complain  that  steps  are  not 
taken  to  determine  his  rights  to  the  office.  An  indi- 
vidual as  a  corporator  or  taxpayer  cannot  bring  such 
an  action  to  determine  the  validity  of  an  election,  or  to 
restrain  illegal  acts.  {Demarest  v.  Wickham,  supra). 
The  action  specified  in  this  section  is  the  proper  remedy 
where  a  person  has  usurped  the  office  of  alderman  of  a 
municipal  corporation.  {Leiuds  v.  Oliver,  4  Abb.  Pr. 
121). 

In  these  actions  brought  by  the  people  on  the  relation 
of  an  individual,  it  is  not  sufficient  that  the  people  show 
that  a  wrong  has  been  done  to  some  one;  the  wrong 
must  appear  to  be  done  to  the  people,  in  order  to  sup- 
port an  action  by  the  people  for  its  redress.  Wrongs  to 
individual  citizens  are  redressed  at  the  suit  of  the  par- 
ties injured,  and  not  by  an  action  by  the  people.  {Peo- 
ple v.  AU).  ii  ^usq.  R.  R.  Co.,  57  N.  Y.  161).  A  mere 
dispute  over  a  question  of  law,  will  not  be  sufficient 
ground  upon  which  to  bring  the  action ;  there  must  be  a 
dispute  as  to  the  facts,  in  order  to  justify  the  action. 
(Id.).     So  where  a  person  to  secure  his  election,  made  a 


ACTION  AGAINST  USUKPEU  OF  OFFICE  OR  FRANCHISE.       479 

promise  to  serve  the  people  for  a  sum  less  than  that 
allowed  by  law,  and  issued  cards  containing  that 
promise,  it  was  held  that  an  action  in  the  nature  of  quo 
tuarranto  was  the  proper  remedy  to  test  the  question  of 
the  defendant's  right  to  hold  the  office,  and  to  determine 
what  votes  cast  at  such  election  for  the  defendant  were 
influenced  by  such  promise;  and  to  reject  all  that  were 
so  influenced.  {People  ex  rel.  Bush  v.  Thornton^  25 
Hun,  456).  An  action  lies  against  an  individual  who 
has  intruded  into  the  office  of  sheriff,  although  the 
board  of  county  canvassers  decided  that  he  was  entitled 
to  such  office.  {People  ex  rel.  Yon  Voost  v.  Van  ^lyck, 
4  Cow.  297).  It  is  the  proper  action  in  which  to  try 
a  title  to  a  military  office.  {People  ex  rel.  Little  v. 
Sampson,  25  Barb.  254).  The  question  whether  or  not 
a  supervisor  was  entitled  to  exercise  the  powers  and 
duties  of  such  office  is  triable  in  such  an  action.  {Peo- 
ple V.  Carpenter,  24  N.  Y.  86;  People  v.  Purdy,  154 
N.  Y.  439).  In  the  case  of  People  v.  Carpenter,  the 
right  to  the  exercise  of  the  office  of  supervisor  depended 
not  on  the  fact  of  the  regularity  of  the  election,  or  that 
the  defendant  was  duly  and  properly  elected;  but  upon 
the  question  whether  or  not  the  town  of  which  he 
claimed  to  be  supervisor,  actually  existed  in  fact;  and 
the  court  held  that  that  question  could  be  decided  in  the 
action  to  try  his  title  to  the  office;  and  in  the  opinion 
say  that  the  object  of  the  framers  of  the  code  was  mani- 
festly to  provide  a  speedy  and  effective  mode  of  deter- 
mining the  claims  of  persons  to  exercise  the  duties  of 
any  office  within  this  state;  and  the  determination  of 
the  claims  of  individuals  to  discharge  the  duties  of  any 
office,  would  necessarily  involve  the  determination  of 
the  existence  of  the  particular  office.  If  the  office  did 
not  in  fact  exist,  there  could  be  no  usurpation;  and  if 
it  did  exist,  then  the  usual  question  would  be  presented, 
as  to  whether  or  not  the  defendant  was  rightfully  in 
possession  of  it;  and  the  court  of  appeals  affirmed  the 
decision  of  the  court  below  in  dismissing  the  complaint ; 
holding  that  the  court  had  the  right  to  determine  as  to 
the  actual  existence  of  the  town,  in  the  action  to  deter- 
mine the  title  to  an  officer  of  such  town. 


480  PRACTICE. 

This  actiou  can  only  be  brought  in  cases  where  the 
right  is  conferred  by  the  statute.  So  where  the  legis- 
lature in  creating  a  corporation  gives  to  commissioners 
appointed  under  the  act  the  right  to  issue  bonds,  the 
attorney-general  has  not  the  power  to  bring  an  action 
against  them  to  prevent  them  from  issuing  such  bonds. 
{People  V.  Miner,  2  Lans.  396). 

The  question  of  title  to  an  office  cannot  be  tried  in- 
directly, as  on  certiorari  directing  the  officer  to  do  a 
particular  act.  {People  ex  rel.  Corwin  v.  M' alter,  68 
N.  Y.  403).  Nor  can  it  be  tried  in  a  proceeding  under 
the  statute  to  compel  an  officer  to  deliver  the  books  and 
papers  of  such  office  {People  ex  rel.  KUbourn  v.  Allen, 
51  How.  Pr.  97;  Matter  of  Bradley,  141  N.  Y.  527;  Mat- 
ter of  Brenner,  170  N.  Y.  185;  Matter  of  Giiden,  71  App. 
Div.  422;  affd.,  171  N.  Y.  529) ;  and  where  defendant  is 
in  possession  of  office  under  color  of  right,  mandamus 
will  not  lie  to  determine  his  right,  even  though  there  is 
no  serious  question  as  to  relator's  title.  {People  v. 
Police  Commissioners,  170  N.  Y.  450,  465;  Matter  of 
Hart,  159  N.  Y.  278;  People  ex  rel.  Leicis  v.  Brush,  146 
N.  Y.  60).  Where  the  title  to  office  depends,  not  on 
admitted  facts  or  indisputable  records,  or  the  plain 
letter  or  fair  construction  of  a  statute,  but  upon  dis- 
putable and  extraneous  facts,  the  question  cannot  be 
tried  in  a  taxpayer's  action  brought  to  restrain  the  pay- 
ment of  salaries.  ( Greene  v.  Knox,  175  N.  Y.  432,  438) ; 
but  in  certain  cases  under  the  Civil  Service  Law  where 
there  has  been  no  pretence  of  compliance  with  such  law, 
the  court  has  in  a  taxpayer's  action  collaterally  con- 
sidered the  title  to  office.  {Greene  v.  Knox,  175  N.  Y. 
432 ;  Rogers  v.  Common  Council,  123  N.  Y.  173 ;  Peck  v. 
Belknap,  130  N.  Y.  394). 

Under  subdivision  three  of  section  1948,  above  quoted, 
where  the  action  is  brought  to  test  the  validity  of  a  so- 
called  corporation,  there  must  be  some  actual  exercise 
of  corporate  rights  or  powers  before  an  action  will  lie; 
merely  claiming  to  be  a  corporation  does  nobody  any 
injury,  especially  the  people  of  the  state;  and  unless 
some  act  is  done  by  virtue  of  such  claim  as  amounts  to 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.       481 

a  user  or  exercise  of  the  privileges  or  rights  of  a  corpo- 
ration, neitlier  the  people,  nor  anybody  else  can  com- 
plain. So  where  an  action  was  brought  charging  the 
defendants  with  claiming,  using  and  exercising  liber- 
ties, privileges  and  franchises  of  being  a  body  corporate, 
and  acting  as  a  corporation,  it  is  a  sufficient  answer  to 
such  charge  to  deny  the  use  and  exercise  of  the  fran- 
chise; it  is  not  necessary  to  deny  the  claiming;  as  the 
mere  claim  does  not  constitute  the  basis  for  the  cause 
of  action ;  the  use  or  exercise  of  the  franchise  is  the  very 
gravamen  of  the  offense,  and  must  be  the  basis  of  a 
cause  of  action  on  this  ground.  {People  ex  rel.  Taylor 
V.  Tliompson,  16  Wend.  655).  Where,  however,  the 
corporation  is  acting  under  corporate  privileges  and 
exercising  a  corporate  franchise,  it  is  a  sufficient  an- 
swer to  such  action  to  show  the  act  of  the  legislature 
granting  such  franchise.  {People  v.  Rensselaer,  etc., 
R.  R.  Co.,  15  Wend.  113).  If  no  authority  is  thus 
shown,  the  action  may  be  maintained,  and  the  court 
may  in  a  proper  x^ase  perpetually  enjoin  the  defendants 
from  so  acting.  (Co.  Civ.  Proc.  §  1955).  Where  the 
action  is  brought  against  the  defendants,  in  their  cor- 
porate name,  it  admits  the  existence  of  the  corporation, 
or  that  it  once  had  a  legal  existence.  {People  v.  Rens- 
selaer, etc.,  R.  R.  Co.,  supra).  This  is  the  only  action 
in  which  to  test  the  legality  of  a  so-called  corporation. 
{People  ex  rel.  Kingsland  v.  Clark,  70  N.  Y.  518). 
Where  several  persons  claim  to  be  legally  elected  as 
directors  of  a  corporation,  under  and  by  virtue  of 
different  elections,  the  attorney-general  may  bring  an 
action  to  determine  the  rights  of  the  respective  parties, 
and  whether  or  not  either  of  such  elections  were  valid, 
and  if  so,  which  one,  and  which  set  of  directors  is  en- 
titled to  the  office.  {People  v.  Alb.  &  8usq.  R.  R.  Co., 
55  Barb.  344).  So  also  of  rival  claimants  to  the  office 
of  trustees  of  a  religious  corporation.  {Reis  v.  Rohde, 
34  Hun,  161). 

A  court  of  equity  has  no  inherent  power  to  try  the 
disputed  title  to  corporate  office  and  to  enjoin  one  in 
possession  from  the  exercise  of  its  functions  at  the  suit 
31 


482  PRACTICE. 

of  a  rival  claimaut.  AVliere,  however,  the  particular 
case  presents  other  features  calling  for  relief  which  are 
of  equitable  cognizance,  and  the  trial  of  a  disputed  title 
to  corporate  office  is  only  incidental  thereto,  the  court 
ma}^  inquire  into  the  legalitj-  of  the  election  and  grant 
such  relief  as  the  special  exigencies  require;  but  its 
judgment  cannot  go  to  the  extent  of  ousting  a  de  facto 
officer,  nor  will  it  be  permitted  to  have  that  etiect. 
{Ciancimino  v.  Man,  1  Misc.  121;  Model  Building  and 
Loan  Assn.  v.  Patterson,  12  Misc.  400;  Washington 
JAghting  Co.  v.  Dimmick,  41  App.  Div.  596).  Section 
1948  does  not  relate  to  unincorporated  associations  and 
a  court  of  equity  has  jurisdiction  of  an  action  brought 
by  certain  members  of  such  an  association  to  restrain 
a  defendant  from  exercising  the  powers  of  an  office  to 
which  he  claims  to  have  been  elected.  {Boston  Base 
Ball  Assn.  v.  Brookhjn  Base  Ball  Cluh,  37  Misc.  521). 
Section  1948  does  not  limit  the  scope  of  the  common 
law  writ  and  the  action  may  be  maintained  by  the 
attorney-general  against  underwriters  carrying  on  the 
business  of  Lloyds  insurance,  although  unincorporated. 
{People  V.  Loew,  19  Misc.  248).  Section  1948  does  not 
authorize  an  action  by  the  attorney-general  in  the  name 
of  the  people  against  a  corporation  to  restrain  the  com- 
mission of  a  nuisance  in  a  city  street.  {People  v. 
Equitij  Gas  Light  Co.,  141  N.  Y.  232). 

It  seems,  however,  that  the  people  may,  by  delegating 
the  power  to  decide  whether  or  not  a  person  is  legally 
entitled  to  an  office,  so  part  with  such  power  that  it  will 
be  bound  by  the  decision  of  its  agent,  and  be  estopped 
from  questioning  l)y  proceedings  in  the  nature  of  quo 
warranto  the  right  of  such  person  to  hold  the  office,  so 
long  as  he  does  not  abuse  it.  Where  the  people,  acting 
through  their  constitutional  agents,  have  ratified  the 
title  to  an  office  by  validating  an  informal  election,  they 
cannot  afterward  question  by  action  the  title  thus  estab- 
lished.    {People  v.  Flanagan,  66  N.  Y.  237). 

What  acts  or  omissions  on  the  part  of  an  officer  will 
amount  to  a  forfeiture  of  his  office,  are  matters  of  posi- 
tive law  and  not  of  practice;  and  whether  or  not  such 
acts  or  omissions  have  actually  occurred  is  always  a 


I 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.       483 

question  of  fact  to  be  determined  in  the  action.  Where 
the  attorney-general,  upon  his  own  information,  or  upon 
the  information  or  complaint  of  a  private  person,  has 
reason  to  believe  that  such  acts  have  been  done  or 
suffered  as  will  work  a  forfeiture  of  office,  he  should 
bring  an  action  in  the  name  of  the  people  to  oust  and  ex- 
clude the  defendant  from  such  office.  To  entitle  the 
people  to  maintain  such  an  action,  there  must  have  been 
some  injury  resulting  to  the  people;  it  is  not  sufficient 
that  a  private  right  has  been  invaded.  {People  v.  Alh. 
&  Susq.  R.  R.  Co.,  57  N.  Y.  161). 


ARTICLE  II. 

PROCEEDINGS   IN   THE   ACTION. 

SECTION. 

1.  Parties  and  pleadings. 

2.  Place  of  trial. 

3.  Order  of  arrest. 

4.  Temporary  injunction. 

5.  Trial  of  issues. 

6.  Judgment. 

7.  Assumption  of  office  and  demand  of  books. 

8.  Costs. 

Sec.    1.    Parties  and  pleadings. 

In  an  action,  brought  as  prescribed  in  section  1948, 
for  usurping,  intruding  into,  unlawfully  holding,  or 
exercising  an  office,  the  attorney-general,  besides  stating 
the  cause  of  action  in  the  complaint,  may,  in  his  discre- 
tion, set  forth  therein  the  name  of  the  person  rightfully 
entitled  to  the  office,  and  the  facts  showing  his  right 
thereto.     (Co.  Civ.  Proc.  §  1949). 

The  attorney-general  may  maintain  the  action  upon 
his  own  information ;  or  upon  the  complaint  of  a  private 
person.  (Co.  Civ.  Proc.  §  1948).  The  right  to  decide 
whether  the  state  will  seek  to  remove  one  who  has  un- 
lawfully intruded  into  a  public  office,  lies  with  the 
attorney-general;  and  his  decision  upon  that  point  can- 
not be  reviewed  by  the  courts.  A  mandamus  to  compel 
him  to  bring  the  action  cannot  be  granted.      {People 


484  PRACTICE. 

ex  rcl.  Dcmarcst  v,  Fairchlld,  S  Hun,  334;  affd.,  07 
N.  Y.  334).  Before  the  statute  of  1830,  the  discretion 
whether  or  not  such  an  action  shouhl  be  brought,  was 
vested  in  the  supreme  court;  and  leave  had  to  be  ob- 
tained of  that  court,  before  the  action  could  be  brought; 
but  b}'  the  statute  of  that  year  (Laws  1830,  chap.  320, 
p.  400)  it  was  declared  to  be  the  duty  of  the  attorney- 
general  whenever  he  shall  have  good  reason  to  believe 
that  the  same  can  be  established  hj  proof,  to  file  such 
information  in  every  case  of  public  interest;  and  also 
in  every  other  case  in  which  satisfactory  security  shall 
be  given  to  indemnify  the  people  of  this  state  against 
all  costs  and  expenses  to  be  incurred  thereby.  This 
discretion  has  been  continued  in  the  attorney-general 
both  by  the  code  of  procedure  (§  432)  and  by  the  code 
of  civil  procedure.  (§  1948).  It  is  even  enlarged,  so 
that  now  the  attorney-general  "  may  "  maintain  such  an 
action  in  the  cases  specified  in  the  code.  So  that  now 
there  is  no  positive  duty  imposed  upon  the  attorney- 
general  to  bring  the  action,  either  upon  his  own  in- 
fornmtion,  or  upon  the  request  and  after  the  complaint 
of  a  private  individual,  although  that  party  claims  to  be 
entitled  to  the  office  himself,  and  complains  that  he  is 
wrongfully  excluded  therefrom.  {People  ex  rel.  Dema- 
rest  v.  FairchUd,  supra;  People  ex  rel.  Peahody  v. 
Attorney-General,  22  Barb.  114).  As  we  have  seen  in 
the  preceding  article,  the  primary  object  of  the  action 
against  a  usurper  is  to  protect  the  public  at  large 
against  such  usurpation  of  an  office  without  authority, 
it  is  therefore  left  with  the  law  officer  of  the  people  to 
determine  whether  such  a  state  of  facts  has  arisen  as 
will  justify  him  in  commencing  an  action  in  their  name 
to  determine  that  question.  The  determination  of  the 
right  of  the  relator  to  the  office  is  merely  incidental  to 
the  action,  and  is  permitted  for  the  reason  that  ordi- 
narily the  judicial  ouster  of  the  incumbent,  in  effect 
establishes  the  rights  of  the  adverse  claimant  to  the 
office.  (Id.).  Where  the  attorney-general  brings  the 
action  upon  his  own  information  against  a  person 
alleged  to  have  usurped  an  office,  he  may  properly  join 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.       485 

as  defendant  another  person  who  claims  to  be  rightfully 
entitled  to  such  ofiQce.     {People  v.  Dooley,  171  N.  Y.  74). 

Where  an  action  is  brought  by  the  attorney-general, 
on  the  relation  or  information  of  a  person,  having  an 
interest  in  the  question,  the  complaint  must  allege,  and 
the  title  of  the  action  must  show,  that  the  action  is 
brought  upon  the  relation  of  that  person.  In  such  a 
case,  the  attorney-general  must,  as  a  condition  of  bring- 
ing the  action,  require  the  relator  to  give  satisfactory 
security  to  indemnify  the  people  against  the  costs  and 
expenses  thereof.  Where  security  is  so  given,  the  attor- 
ney-general is  entitled  to  compensation  for  his  services, 
to  be  paid  by  the  relator,  in  like  manner  as  the  attorney 
and  counsel  for  a  private  person.  (Co.  Civ.  Proc.  § 
1986). 

Under  the  code  of  procedure  it  was  held  that,  while 
the  attorney-general  had  this  discretion  whether  or  not 
to  bring  the  suit,  yet  if  he  commenced  the  action  upon 
the  relation  of  a  private  person,  who  claimed  to  be  en- 
titled to  the  office,  he  must  join  such  relator  as  a  party 
plaintiff.  {People  ex  rel.  Crane  V.  Ryder,  12  N.  Y.  433). 
If  the  attorney-general  failed  to  join  the  relator,  the 
defect  might  however  be  cured  by  amendment.  {People 
ex  rel.  Ha  ices  v.  Walker,  23  Barb.  304).  Under  the 
code  of  civil  procedure,  although  the  relator  may  not 
be  a  necessary  party  plaintiff,  still  he  is  a  proper  party, 
and  a  demurrer  will  not  lie  by  reason  of  his  joinder. 
(People  ex  rel.  Petry  v.  De  Bevoise,  27  Hun,  596). 
But  the  party  claiming  the  office,  as  we  have  seen,  has 
no  legal  right  to  compel  the  bringing  of  the  suit;  as  it 
is  the  theory  of  the  law  that  the  attorney-general  shall 
not  be  subject  to  the  dictation  of  individual  interests, 
or  judicial  reviews,  in  regard  to  his  discretion  in  this 
respect.  {People  ex  rel.  Demarest  v.  Fairchild,  67  N.  Y. 
334 ) .  Where  the  attorney-general  refuses  to  bring  an 
action  in  a  proper  case,  even  from  corrupt  or  unworthy 
motives,  still  the  remedy  is  not  by  mandamus  to  compel 
him  to'  act ;  but  the  facts  should,  if  sufficient  to  warrant 
the  removal  of  the  attorney-general,  be  presented  to  the 
proper  tribunal  for  that  purpose. 


486  PRACTICE. 

The  ccmiplaiiil  should  set  out  the  cause  of  action  fully 
and  with  particularity,  so  that  the  court  may  be  cor- 
rectly informed  as  to  just  what  office  is  intended,  when 
the  election  was  held,  that  it  was  held  pursuant  to 
statute  to  elect  an  officer  to  hold  the  office  named,  for  a 
term  stated,  commencini;'  on  a  day  fixed  by  law,  and  all 
other  details  ^\hich  will  lead  the  court  to  the  particular 
facts  upon  which  the  people  rely  to  establish  their  cause 
of  action.  {People  ex  rel.  Crane  v.  Ryder,  12  N.  Y.  433). 
Where  the  complaint  is  not  sufficiently  definite,  the 
remedy  is  by  a  motion  under  section  546  of  the  code, 
to  make  it  definite  and  certain;  which  may  be  done  by 
amendment.  {People  ex  rel.  Siclnlmnie  v.  Nolan,  10 
Abb.  N.  C.  471;  affd.  without  op.,  27  Hun,  545).  It  is 
not  necessary  to  allege  more  than  the  dry  facts,  with- 
out detailing  them,  or  giving  a  variety  of  minute  cir- 
cumstances Avhich  constitute  the  evidence  of  such  facts. 
It  has  been  held  that  it  was  enough  to  aver  in  the  com- 
plaint that  the  defendant  unlawfully  holds  the  office, 
describing  it ;  and  that  it  was  unnecessary  to  allege  the 
facts  tending  to  show  the  truth  of  such  allegation. 
{People  v.  Piatt,  10  N.  Y.  St.  Rep.  717).  But  it  would 
seem  that  that  was  too  nearly  in  opposition  to  the  gen- 
eral rule  of  pleading,  that  facts  and  not  conclusions  of 
law  should  be  pleaded,  to  be  the  true  rule ;  and  that  the 
better  practice  is  to  allege  all  the  material  facts  which 
will  raise  a  specific  issue  upon  which  the  court  can  reach 
its  own  conclusions  of  law.  The  evidence  of  such  facts 
need  not  be  developed  in  the  pleadings.  {People  ex  rel. 
Crane  v.  Ryder,  supra;  People  ex  rel.  ^imnhnrne  V. 
Nolan,  supra).  It  can  be  urged,  however,  that  as  the 
burden  of  proof  finally  rests  with  the  defendant,  as 
against  the  people,  to  show  by  what  right  he  holds  the 
office,  the  court  will  not  be  so  strict  in  requiring  the 
complaint  to  set  out  every  fact  which  would  be  neces- 
sary to  support  its  cause,  as  in  case  it  were  obliged  by 
affirmative  proof  to  show  that  the  defendant  was  wrong- 
fully in  possession  of  such  office.  {People  ex  rel. 
Cornell  V.  Knox,  38  Hun,  236). 

The  complaint  need  not  aver  that  the  relator  has  the 
requisite  qualifications  nor  need  the  number  of  votes 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.      487 

be  stated,  if  the  relator  is  stated  to  have  had  a  majority 
or  a  plurality.  {People  ex  rel.  Crane  v.  Ryder,  supra). 
Where  an  action  was  brought  on  the  relation  of  three 
persons  who  claimed  to  have  been  elected  as  a  board  of 
excise,  against  three  other  persons  alleged  to  have 
usurped  the  office,  it  was  not  necessary  to  allege  or 
prove  that  either  of  the  relators  was  entitled  to  the 
office  occupied  or  claimed  by  any  one  of  the  defendants ; 
the  action  was  brought  to  determine  which  set  of  per- 
sons legally  composed  the  board.  (People  ex  rel.  Bah- 
cock  V.  Murray,  70  N.  Y.  521).  Where  the  complaint 
avers  that  the  relator  Avas  elected  to  the  office  by  the 
greatest  number  of  votes,  it  is  sufficient.  {People  ex 
rel.  Swinburne  v.  Nolan,  10  Abb.  N.  C.  471 ;  affd.  with- 
out op.,  27  Hun,  545).  Where  the  complaint  alleged 
that  the  defendant  usurped  the  office  and  unlawfully 
intruded  into  it,  and  called  upon  the  defendant  to  show 
cause  by  what  authority  it  is  held,  and  the  defendant 
does  not  deny  such  allegation,  he  admits  it  to  be  true, 
and  thereby  admits  his  own  incapacity  to  hold  the  office. 
{People  ex  rel.  Cornell  v.  Knox,  38  Hun,  236). 

The  defendant's  answer  should  not  only  deny  the 
allegations  of  the  complaint,  but  should  allege  facts 
tending  to  establish  in  himself  the  right  to  hold  the 
office,  and  showing  his  warrant  therefor.  He  must 
allege  facts  which  upon  being  proved  on 'the  trial  will 
establish  his  title  to  the  office,  or  judgment  will  be  ren- 
dered against  him;  the  mere  possession  of  the  office  is 
not  sufficient.  {People  ex  rel.  Judson  v.  Thacher,  55 
N.  Y.  525).  While  it  has  been  held  that  the  informa- 
tion need  not  show  the  title  in  the  people  or  the  relator; 
yet  it  lies  with  the  defendant  to  show  his  warrant  for 
exercising  the  office.  {People  ex  rel.  Atty.  Genl.  v. 
Utica  Ins.  Co.,  15  Johns.  358).  The  action  being  pub- 
lic in  its  nature,  it  is  no  answer  for  the  defendant  to 
allege  that  the  relator  may  have  his  remedy  by  a  private 
action.  {People  v.  Prest.,  etc.,  of  Hillsdale  <£•  ChatJuim 
Turnpike,  23  Wend.  254). 

See,  also,  the  rules  as  to  pleadings  in  volume  I  of  this 
work. 


4SS  PRACTICE. 

Sec.    2.   Place    of   trial. 

^^'hel•e  an  action  for  any  of  the  canses  specified  in  sec- 
tion 194S  of  the  code,  is  biouj^lit  by  the  attoi'iiey-<^eneral, 
it  may  be  brought  in  any  county  of  the  state,  unless  it  is 
such  an  action  as  rehites  to  a  penalty  or  forfeiture  im- 
posed by  statute,  or  against  a  public  officer  for  an  act 
done  in  virtue  of  his  office,  or  for  the  omission  to  per- 
form a  duty  incident  to  his  office,  in  which  case  it  should 
be  brought  in  the  county  where  the  cause  of  action  or 
some  part  thereof  arose.  [People  v.  Flatt,  46  Hun,  394; 
Co.  Civ.  Proc.  §  983).  It  is  the  intention  of  the  law  to 
allow  the  attorney-general  to  bring  the  action  wherever 
he  chooses  or  thinks  best.  But  this  right  is  subject  to 
the  right  of  the  court  to  change  the  place  of  trial  for  the 
convenience  of  witnesses.  {People  v.  Plait,  12  N.  Y. 
St.  Kep.  409 ) .  The  place  of  trial,  however,  will  not  be 
changed  on  the  ground  of  the  defendant's  residence;  as 
that  would  operate  to  limit  the  right  to  bring  the  action, 
to  the  county  of  such  residence.  {People  v.  Piatt,  10 
N.  Y.  St.  Kep.  717).  As  to  the  motion  to  change  the 
place  of  trial  on  account  of  convenience  of  witnesses, 
see  vol.  II,  pp.  143, 157,  et  seq. 

Sec.    3.    Order  of  arrest. 

By  section  1949,  it  is  provided  that  in  an  action 
against  one  for  usurping,  intruding  into,  unlawfully 
holding  or  exercising  an  office,  where  the  complaint  sets 
forth  the  name  of  the  person  rightfully  entitled  to  the 
office,  and  the  facts  showing  his  right  thereto,  and  upon 
proof,  b}^  affidavit,  that  the  defendant,  by  means  of  his 
usurpation  or  intrusion,  has  received  any  fees  or  emolu- 
ments belonging  to  the  office,  an  order  to  arrest  the  de- 
fendant may  be  granted  by  the  court  or  a  judge.  It 
also  provides  that  the  provisions  of  title  1  of  chapter 
YII  of  the  code  apply  to  such  an  order  and  the  proceed- 
ings thereon  and  subsequent  thereto ;  and  that  the  order 
is  deemed  to  have  been  made  as  prescribed  in  section 
549  of  the  code.      (Co.  Civ.  Proc.  §  1949). 

The   subject   of  arrest  has   been   fully   discussed   in 
volume  one  of  this  work,  commencing  at  page  482 ;  so  it 


ACTION  AGAINST  USURPER  OF  OFFICE  OR- FRANCHISE.       489 

will  not  be  necessary  to  devote  any  space  here  to  that 
subject. 

Sec.    4.    Temporary  injunction. 

In  an  action  brought  as  specified  in  subdivisions  third 
or  fourth  of  section  1948  of  the  code,  the  final  judgment 
in  favor  of  the  plaintiff  must  perpetually  restrain  the 
defendant  or  defendants  from  the  commission  or  con- 
tinuance of  the  act  or  acts  complained  of.  A  temporary 
injunction  to  restrain  the  commission  or  continuance 
thereof  may  be  gTanted,  upon  proof,  by  affidavit,  that 
the  defendant  or  defendants  have  violated  any  of  the 
provisions  of  either  of  the  said  subdivisions  third  or 
fourth  of  section  1948  of  the  code.  The  provisions  of 
title  2  of  chapter  VII  of  the  code  apply  to  such  a  tem- 
porary injunction,  and  the  proceedings  thereupon,  ex- 
cept where  provision  is  otherwise  made  in  this  title. 
For  that  purpose,  the  injunction  order  is  deemed  to 
have  been  granted  as  prescribed  in  section  603  of  the 
code.  In  the  trial  of  an  action  brought  as  prescribed 
in  subdivisions  third  or  fourth  of  section  1948,  a  party 
or  a  witness  is  not  excused  from  answering  a  question 
on  the  ground  that  such  answer  will  tend  to  incriminate 
him;  but  such  answer  cannot  be  used  as  evidence 
against  the  person  so  answering  in  a  criminal  action  or 
criminal  proceeding.      (Co.  Civ.  Proc.  §  1955). 

The  whole  subject  of  injunctions  has  been  fully  dis- 
cussed in  volume  one  of  this  work,  commencing  at  page 
539,  to  which  place  reference  is  here  made. 

Sec.    5.    Trial  of  issues. 

An  action,  brought  as  prescribed  in  article  1  of  title  1 
of  chapter  XVI  of  the  code,  is  triable,  of  course  and  of 
right,  by  a  jury,  in  like  manner  as  if  it  was  an  action 
specified  in  section  968  of  the  code,  and  without  procur- 
ing an  order,  as  prescribed  in  section  970  of  the  code. 
(Co.  Civ.  Proc.  §  1950). 

The  actions  referred  to  in  the  above  section  are  those 
in  which  an  issue  of  fact  must  be  tried  by  a  jury,  unless 
a  jury  trial  is  waived,  or  a  reference  is  directed ;  and  the 


490  '  PRACTICE. 

order  referred  to  is  an  order  settling  the  issues  to  be 
tried  by  a  jury.      (Vol.  II,  pp.  212,  224). 

As  we  have  seen  the  action  is  a  legal  action ;  and  the 
issues  therein  are  strictly  legal  ones,  and  triable  by  jury. 
{rcoplc  V.  Alb.  d-  l^itsq.  R.  R.  Co.,  57  N.  Y.  161).  It 
was  held  that  such  actions  were  not  triable  as  of  course 
by  jury  {People  v.  Alh.  &  Susq.  R.  R.  Co.,  1  Lans.  308) ; 
but  that  case  was  reversed  (S.  C,  57  N.  Y.  IGl),  and  the 
code  of  civil  procedure  by  express  provision,  settled  that 
question  in  favor  of  a  jury  trial.  This  right  is  not 
waived  by  joining  other  causes  of  action,  which  in  their 
nature  would  be  regarded  as  equitable.  {People  v.  Alh. 
&  Susq.  R.  R.  Co.,  supra).  A  special  jury  will  not  be 
ordered,  however,  excepting  in  an  extreme  case.  {Peo- 
ple ex  rel.  Stemmler  v.  McGuire,  43  How.  Pr.  67).  See 
vol.  II,  p.  285. 

On  the  trial  of  an  action  in  the  nature  of  a  quo  loar- 
ranto,  as  between  the  people  and  the  defendant,  the 
burden  is  upon  the  defendant  to  show  by  affirmative 
proof  that  he  is  legally  and  rightfully  in  possession  of 
the  office  {People  ex  rel.  Jiidson  v.  Thaclier,  55  N.  Y. 
525) ;  for  the  object  of  the  action  is  to  see  by  what  war- 
rant the  defendant  holds  the  office;  and  it  is  therefore 
his  business  to  show  by  affirmative  proof  his  authority 
for  such  possession  {People  ex  rel.  Atty.  Genl.  v.  Utica 
Ins.  Co.,  15  Johns.  358)  ;  yet  the  production  of  the  cer- 
tificate of  election  from  the  proper  officer  is  sufficient 
{People  ex  rel.  Watkins  v.  Perley,  80  N.  Y.  624)  ;  but  as 
between  the  defendant  and  the  relator,  it  has  been  held 
that  the  burden  is  on  the  relator  to  show  that  he  has  a 
better  title  to  the  office  than  the  defendant.  {People 
ex  rel.  Watkins  v.  P'erley,  supra).  The  legal  qualifica- 
tion of  voters  may  be  inquired  into  in  such  an  action 
brought  to  try  the  title  to  an  elective  office.  {People 
ex  rel.  Smith  v.  Pease,  27  N.  Y.  45).  And  in  the  case 
of  an  appointed  officer,  the  court  may  go  behind  the 
record  of  appointment  and  contradict  it.  {People  ex 
rel.  Hirsch  v.  McCausland,  54  How.  Pr.  151). 


I 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.      491 
Sec.    6.    Judgment. 

Judgment  may  be  rendered  upon  the  right  of  the  de- 
fendant, and  of  the  party  alleged  to  be  entitled ;  or  only 
upon  the  right  of  the  defendant,  as  justice  requires. 
(Co.  Civ.  Proe.  §  1949). 

In  an  action,  brought  as  prescribed  in  subdivision 
third  or  fourth  of  section  1948  of  the  code,  the  final 
judgment,  in  favor  of  the  plaintiff,  must  perpetually 
restrain  the  defendant  or  defendants  from  the  commis- 
sion or  continuance  of  the  act  or  acts  complained  of. 
(Co.  Civ.  Proc.  §  1955). 

In  an  action  under  subdivision  one  or  two  of  section 
1948  of  the  code,  where  a  defendant  is  adjudged  to  be 
guilty  of  usurping  or  intruding  into,  or  unlawfully  hold- 
ing or  exercising  an  office,  franchise  or  privilege,  final 
judgment  must  be  rendered,  ousting  and  excluding  him 
therefrom,  and  in  favor  of  the  people  or  the  relator,  as 
the  case  requires,  for  the  costs  of  the  action.  As  a  part 
of  the  final  judgment,  the  court  may,  in  its  discretion, 
also  award,  that  the  defendant,  or,  where  there  are  two 
or  more  defendants,  that  one  or  more  of  them  pay  to  the 
people  a  fine,  not  exceeding  two  thousand  dollars.  The 
judgment  for  the  fine  may  be  docketed,  and  execution 
may  be  issued  thereupon,  in  favor  of  the  people,  as  if 
it  had  been  rendered  in  an  action  to  recover  the  fine. 
The  fine,  when  collected,  must  be  paid  into  the  treasury 
of  the  state.     (Co.  Civ.  Proc.  §  1956). 

Where  a  written  appointment  is  required  to  the  office 
to  which  relator  is  entitled  under  the  Civil  Service  Law, 
and  no  written  appointment  has  been  made,  the  court 
can  merely  render  a  judgment  of  ouster  against  the  de- 
fendant, and  cannot  decree  that  relator  be  inducted  into 
office.  He  may,  however,  compel  his  appointment  by 
mandamus.  {Feople  ex  rel.  Sears  v.  Tohey,  153  N.  Y. 
381). 

Where  final  judgment  in  an  action  is  rendered 
against  persons  claiming  to  be  a  corporation,  the  court 
may  direct  the  costs  to  be  collected  by  execution  against 
any  of  the  persons  claiming  to  be  a  corporation;  or  by 
warrant  of  attachment,  or  other  process,  against  the 


492  PRACTICE. 

person  of  any  director  or  other  officer  of  the  corpora- 
tion.    (Co.  Civ.  Proc.  §  1987). 

Where  final  judgment  has  been  rendered,  upon  the 
right  and  in  favor  of  the  person  so  alleged  to  be  entitled, 
he  ma}'  recover,  by  action  against  the  defendant,  the 
damages  which  he  has  sustained,  in  consequence  of  the 
defendant's  usurpation,  intrusion  into,  unlawful  hold- 
ing, or  exercise  of  the  office.     (Co.  Civ.  Proc.  §  1953). 

A  judgment  of  ouster  which  determines  that  the  re- 
lator has  the  right  to  the  office,  invests  him  at  once  with 
the  office ;  but  it  seems  that  he  is  only  entitled  to  recover 
from  the  people  the  salary  accruing  after  notice  of  the 
judgment  to  the  comptroller  or  disbursing  officer;  and 
cannot  recover  that  which  became  due  and  payable,  and 
was  paid  to  the  defendant  prior  to  such  notice.  {Mc- 
Yeaiiy  v.  Mayor,  etc.,  of  Neio  York,  80  N.  Y.  185).  It 
is  immaterial  in  such  case  whether  the  salary  is  payable 
for  the  specific  services  rendered,  or  is  an  annual  salary 
payable  at  regularly  recurring  periods;  or  whether  the 
office  is  held  by  appointment  or  election.  ( Id. ) .  But 
after  an  adjudication  of  ouster,  all  amounts  paid  after 
notice  to  the  disbursing  officer,  are  payable  to  the  party 
entitled  to  the  office,  and  if  paid  to  the  person  ousted, 
they  may  be  recovered  in  an  action  against  the  munici- 
palit}^  ( Id. ;  Dolan  v.  Mayor,  etc.,  of  New  York,  68 
N.  Y.  274).  Formerly  it  was  necessary  to  bring  a  sub- 
sequent action  to  collect  a  fine  such  as  is  specified  in 
section  1956  above  quoted;  but  the  code,  to  avoid  cir- 
cuity of  action,  now  enables  the  people  to  recover  the 
fine  in  the  same  action. 

Where  a  judgment  has  been  entered,  ousting  the  de- 
fendant from  an  office,  and  adjudging  the  relator  to  be 
entitled  to  the  possession  thereof,  if  the  defendant  by 
reason  of  his  usurpation  has  caused  the  relator  any 
damage,  that  may  be  recovered  in  a  private  action  by 
the  relator  as  plaintiff  against  the  defendant.  (Co.  Civ. 
Proc.  §  1953).  A  writ  of  assistance  is  not  granted  in 
this  class  of  cases  to  direct  the  sheriff  to  put  the  success- 
ful party  into  possession  of  the  office,  together  with  the 
books  and  papers  belonging  to  it.  (People  v.  Conover, 
6  Abb.  Pr.  220). 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.      493 

As  we  have  already  seen  in  this  section,  where  a  party 
has  unlawfully  obtained  possession  of  an  office  to  which 
another  has  been  legally  appointed  or  elected,  the  latter 
may  maintain  an  action  against  him  for  the  emolu- 
ments or  salary  attaching  to  the  office  and  received  by 
such  incumbent.  It  is  not  necessary  in  such  an  action 
that  there  shall  have  been  an  ouster  against  the  defend- 
ant before  the  plaintiff  is  entitled  to  bring  his  action. 
But  as  this  subject  treats  of  a  private  action  and  not  by 
the  people,  it  is  not  necessary  to  go  into  it  here. 
{Nichols  V.  McLean,  63  How.  Pr.^448;  101  N.  Y.  526). 

A  final  judgment  may  be  appealed  from  the  same  as 
in  any  other  action.  Prior  to  the  constitution  of  1894 
it  was  held  that  to  entitle  the  appellant  to  go  to  the 
court  of  appeals  the  amount  involved  must  be  at  least 
five  hundred  dollars.  {People  ex  rel.  Wright  v.  Willardj 
18  N.  Y.  St.  Rep.  604;  s.  c,  110  N.  Y.  662). 

Sec.    7.    Assumption  of   office,   and  demand  of  books. 

Where  final  judgment  is  rendered,  upon  the  right  and 
in  favor  of  the  person  so  alleged  to  be  entitled,  he  may, 
after  taking  the  oath  of  office,  and  giving  an  official 
bond,  as  prescribed  by  law,  take  upon  himself  the  exe- 
cution of  the  office.  He  must,  immediately  thereafter, 
demand  of  the  defendant  in  the  action,  delivery  of  all 
the  books  and  papers  in  the  custody,  or  under  the  con- 
trol, of  defendant,  belonging  to  the  office  from  which 
the  defendant  has  been  so  excluded.  (Co.  Civ.  Proc. 
§1951). 

If  the  defendant  refuses  or  neglects  to  deliver  any  of 
the  books  or  papers,  demanded  as  prescribed  in  the  last 
section,  he  is  guilty  of  a  misdemeanor;  and  the  same 
proceedings  must  be  taken,  to  compel  the  delivery 
thereof,  as  now  or  shall  hereafter  be  prescribed  by  law, 
where  a  j)erson,  who  has  held  an  office,  refuses  or 
neglects  to  deliver  the  official  books  or  papers  to  his  suc- 
cessor.     (Co.  Civ.  Proc.  §  1952). 

A  public  officer  may  demand  from  any  person  in 
whose  possession  they  may  be,  a  delivery  to  such  officer 
of  the  books  and  papers  belonging  or  appertaining  to 
such  office.     If  such  demand  is  refused,  such  officer  may 


494  PRACTICE. 

make  complaint  thereof  to  any  justice  of  the  supreme 
court  of  the  district,  or  to  the  county  judge  of  the 
county  in  which  the  person  refusing  resides.  If  such 
justice  or  judge  be  satisfied  that  sucli  books  or  papers 
are  withheld,  he  shall  grant  an  order  directing  the  per- 
son refusing  to  show  cause  before  him  at  a  time  specified 
therein,  why  he  should  not  deliver  the  same.  At  such 
time,  or  at  any  time  to  which  the  matter  may  be  ad- 
journed, on  proof  of  the  due  service  of  the  order,  such 
justice  or  judge  shall  proceed  to  inquire  into  the  cir- 
cumstances. If  the  person  charged  with  withholding 
such  books  or  papers  makes  aflfldavit  before  such  justice 
or  judge  that  he  has  delivered  to  the  officer  all  books 
and  papers  in  his  custody  which,  within  his  knowledge, 
or  to  his  belief  belong  or  appertain  thereto,  such  pro- 
ceedings before  such  justice  or  judge  shall  cease,  and 
such  person  be  discharged.  If  the  person  complained 
against  shall  not  make  such  oath,  and  it  appears  that 
any  such  books  or  papers  are  withheld  by  him,  such 
justice  or  judge  shall  commit  him  to  the  county  jail 
until  he  delivers  such  books  and  papers,  or  is  otherwise 
discharged  according  to  law.  On  such  commitment, 
such  justice  or  judge,  if  required  by  the  complainant, 
shall  also  issue  his  warrant  directed  to  any  sheriff  or 
constable,  commanding  him  to  search,  in  the  day  time, 
the  places  designated  therein,  for  such  books  and 
papers,  and  to  bring  them  before  such  justice  or  judge. 
If  any  such  books  and  papers  are  brought  before  him  by 
virtue  of  such  warrant,  he  shall  determine  whether  they 
appertain  to  such  office,  and  if  so  shall  cause  them  to 
be  delivered  to  the  complainant.  (Co.  Civ.  Proc.  § 
2471a,  added  by  Laws  1893,  chap.  179). 

The  proceeding  to  compel  delivery  of  books  and 
papers  is  not  intended  to  try  the  title  of  office,  and  if 
petitioner  produces  a  certificate  of  appointment  from 
the  proper  authorities  and  of  due  qualification  by  tak- 
ing the  oath  and  filing  the  bond  required  by  law,  he  is 
entitled  to  an  order  requiring  the  incumbent  of  the 
office  to  deliver  the  books  and  papers  to  him  (Matter  of 
Sells,  15  App.  Div.  571;  Matter  of  Guden,  71  App. 
Div.    422;    affd.,    171    N.    Y.    529;   Matter   of   Haase, 


ACTION  AGAINST  USURPER  OF  OFFICE  OR  FRANCHISE.      495 

41  Misc.  114;  affcL,  88  App.  Div.  242;  Matter  of 
Fitzgerald,  88  App.  Div.  434) ;  but  a  certificate  of 
appointment  to  a  public  office,  made  pursuant  to  a 
statute,  does  not  establisli  a  prima  facie  right,  so  as  to 
prevent  the  court's  denying  the  application  on  the 
ground  of  the  invalidity  of  the  statute.  {Matter  of 
Brenner,  170  N.  Y.  185). 

An  order  for  the  delivery  of  the  books  should  be  made 
only  in  favor  of  one  actually  in  possession,  and  when  his 
title  to  the  office  is  clear.  {Conover's  Case,  5  Abb.  Pr. 
73). 

No  proceedings  can  be  had  to  compel  the  delivery  of 
books  and  papers  belonging  to  a  public  office  until  a 
judgment  of  ouster  has  been  regularly  entered  against 
the  person  executing  the  duties  of  the  office.  {Welch  v. 
Cook^U  Barb.  396). 

Where  under  an  adverse  judgment  in  an  action  in  the 
nature  of  a  quo  loarranto,  the  defendant  who  was  in 
possession  of  the  office  by  virtue  of  a  certificate  of  elec- 
tion from  the  board  of  canvassers,  is  removed  from  the 
office,  the  court  of  appeals  upon  reversal  of  the  judg- 
ment should  order  restitution  and  should  replace  the 
defendant  in  the  office  from  which  he  had  been  ejected; 
and  should  not  at  such  state  of  the  proceeding  look  into 
the  case  to  see  which  way  the  merits  incline  as  between 
the  contestants.  {People  ex  rel.  Dailey  v.  Livingston, 
80  N.  Y.  66). 

Sec.    8.    Costs. 

The  proceeding  in  the  nature  of  a  quo  warranto  is  in 
the  nature  of  a  civil  action,  and  the  parties  are  entitled 
to  costs  in  this  action  as  in  other  civil  actions.  {People 
ex  rel.  Fur  man  V.  Clute,  52  N.  Y.  576).  As  we  saw  in 
section  6  {siij^ra)  where  the  final  judgment  is  rendered 
against  persons  claiming  to  be  a  corporation,  the  court 
may  direct  the  costs  to  be  collected  by  execution  against 
any  of  the  persons  claiming  to  be  a  corporation,  or  by 
warrant  of  attachment  or  other  process  against  the  per- 
son of  any  director  or  other  officer  of  the  corporation. 
(Co.  Civ.  Proc.  §  1987).  The  unsuccessful  party  in  this 
as  in  other  civil  actions  is  liable  for  costs.     {People  v. 


496  PRACTICE. 

Clarke,  10  Barb.  120;  affd.,  9  N.  Y.  319).  An  execu- 
tion is  the  proper  method  of  collecting  the  costs  in  such 
an  action.     {People  v.  Conover,  6  Abb.  Pr.  220). 

As  to  what  costs  will  be  imposed,  the  general  rules  in 
civil  actions  apply;  as  to  which  see  volume  II,  p.  537, 
et  seq. 

A  formal  demand  in  the  complaint  that  defendant  be 
fined  two  thousand  dollars  does  not,  upon  dismissal  of 
the  complaint,  furnish  a  basis  of  an  allowance  in  addi- 
tion to  costs  against  the  relator.  {People  ex  rel. 
Winans  v.  Adams,  128  N.  Y.  129). 


CHAPTER  LXI. 

SUPPLEMENTARY   PROCEEDINGS. 


ARTICLE  I. .  . .  In  what  cases  supplementary  proceedings  may  be  had. 

ARTICLE  II. .  .  Proceedings  before  referee. 

ARTICLE  III .  .  Order  requiring  delivery  of  property. 

ARTICLE  IV . .  How  proceedings  discontinued. 

ARTICLE  V. . .  The  receiver. 


ARTICLE  I. 

IN    WHAT    CASES    SUPPLEMENTARY    PROCEEDINGS    MAY    HE 

HAD. 
SECTION. 

1.  Nature  and  object  of  the  proceeding. 

2.  When  order  may  be  granted. 

3.  Before  what  judge  proceedings  had. 

4.  The  affidavit. 

5.  Warrant  of  arrest. 

6.  The  order. 

7.  The  injunction. 

Sec.    1.   Nature  and  object  of  tlie  proceeding. 

The  remedy  provided  by  the  code  of  procedure,  and 
afterwards  by  the  code  of  civil  procedure,  which  is  a 
proceeding  to  compel  an  examination  of  a  judgment 
debtor  or  his  debtor  or  bailee,  and  the  appointment  of  a 
receiver  to  take  the  property  of  such  judgment  debtor, 
whether  in  his  possession  or  in  the  possession  of  his 
debtor  or  bailee,  is  a  new  remedy,  which  was  unknown 
to  the  former  practice.  Before  the  adoption  of  the  code 
of  procedure,  a  judgment  creditor  who  had  exhausted 
his  remedy  at  law  without  obtaining  satisfaction  of  his 
judgment,  was  obliged  to  proceed  by  an  action  in  equity, 
by  means  of  a  creditor's  bill,  to  discover  property  be- 

(497) 

32 


498  PRACTICE. 

longing  to  the  debtor  which  could  not  be  obtained  or 
reached  by  execution,  and,  if  successful  in  such  proceed- 
ing, to  have  a  decree  granted  in  his  favor,  that  such 
l)r(ipertj  be  applied  to  the  payment  of  his  judgment. 
This  mode  of  obtaining  satisfaction  of  a  judgment  was 
often  attended  with  great  delay  and  expense,  and  not 
unfrequently  it  operated,  substantially,  as  a  denial  of 
the  rights  of  the  creditor. 

It  was  to  avoid  this  expense,  trouble  and  delay,  and  to 
provide  a  summary  and  inexpensive  substitute  for  the 
former  creditor's  bill,  that  the  legislature,  in  1848, 
enacted  the  provisions  which,  with  numerous  amend- 
ments made  from  that  time  until  the  adoption  of  the 
code  of  civil  procedure,  now  constitute  title  12  of  chap- 
ter XVII  of  the  code  of  civil  procedure,  under  the  title 
of  "  Proceedings  supplementary  to  an  execution  against 
property."  (Smith  v.  Mahony,  3  Daly,  285).  Under 
the  former  code  there  was  a  conflict  as  to  the  nature  of 
the  proceeding  itself,  whether  it  should  be  considered  as 
a  proceeding  in  the  action  in  which  the  judgment  was 
recovered,  or  a  distinct  special  proceeding.  The  weight 
of  authority  under  the  code  of  procedure  on  that  sub- 
ject was  in  favor  of  considering  it  as  a  mere  proceeding 
in  the  action  {^yegman  v.  ChiJds,  41  N.  Y.  159;  Wright 
V.  Nostrand,  94  N.  Y.  31;  Ward  v.  Roij,  69  N.  Y.  96)  ; 
although  it  was  held  the  other  way  in  several  cases. 
(Davis  V.  Turner,  4  How.  Pr.  190;  Griffin  v.  Doniinguez, 
2  Duer,  656).  The  commissioners  in  preparing  and  re- 
drafting this  title  in  the  code  of  civil  procedure,  how- 
ever, settled  that  point  by  declaring  that  the  three 
remedies  provided  therein,  to  compel  the  examination 
of  the  judgment  debtor  and  of  his  debtor  or  bailee  Avere 
special  proceedings.  (Co.  Civ.  Proc.  §  2433;  Millihen  v. 
Thomson,  54  X.  Y.  Super.  Ct.  Kep.  393).  Those  cases 
which  hold  to  the  contrary  are  therefore  no  longer  the 
law.  There  was  also  some  doubt  as  to  the  mode  of  re- 
viewing these  proceedings;  which  doubt  has  also  been 
removed  by  the  provisions  of  the  same  section.  (Co. 
Civ.  Proc.  §  24.33).  The  mode  of  review  will  be  more 
fully  treated  of  in  a  subsequent  part  of  this  chapter. 


SUPPLEMENTARY    PROCEEDINGS.  499 

The  object  of  the  proceeding  is  indicated  in  the  title 
of  that  portion  of  the  code  which  provides  the  remedy, 
viz. :  ''  Proceedings  supplementary  to  an  execution 
against  property."  It  is  to  provide  a  means  of  reach- 
ing the  property  of  a  judgment  debtor  after  the  issue  of 
an  execution,  in  the  cases  specified  in  the  code,  and  of 
compelling  an  examination  of  such  judgment  debtor, 
or  of  his  debtor  or  bailee;  and,  in  case  property  is  dis- 
covered, of  appointing  a  receiver  to  take  such  property, 
and  under  the  direction  of  the  court  or  judge,  to  apply 
it  to  the  payment  of  the  judgment.  {Joyce  V.  Bpafard, 
9  Civ.  Proc.  Rep.  342;  Bryant  v.  Grant,  87  Hun,  68). 
It  is  substantially  a  substitute  for  a  creditor's  bill ;  ex- 
cepting that  it  is  a  special  proceeding,  and  more  sum- 
mary in  its  nature  and  course.  The  service  of  the 
order  takes  the  place,  in  the  present  practice,  of  the 
commencement  of  the  suit  by  a  creditor's  bill  under  the 
old  system;  and  it  gives  the  judgment  creditor  a  lien 
upon  the  equitable  assets  of  the  judgment  debtor  in  the 
same  manner;  which  lien  is  rendered  effectual  by  the 
final  order  of  the  judge  directing  the  payment  to  the 
plaintiff  of  the  amount  of  his  judgment.  {Lynch  V. 
Johnson,  48  N.  Y.  27;  Importers  and  Traders'  Nat. 
Bank  v.  Quackenhush,  143  N.  Y.  567).  The  provisions 
of  the  code  were  intended  to  give  the  creditor  complete 
authority  for  a  full  and  searching  examination  of  the 
judgment  debtor,  and  of  those  who  were  indebted  to 
him,  or  who  had  in  their  possession  any  property  belong- 
ing to  him,  for  the  purpose  of  ascertaining  the  amount 
and  condition,  as  well  as  the  disposition  which  the 
debtor  has  made  or  has  attempted  to  make  of  his  prop- 
erty, and  to  compel  the  application  of  the  property  so 
discovered  to  the  satisfaction  of  the  plaintiff's  judg- 
ment. {Forbes  v.  Willard,  37  How.  Pr.  193;  54  Barb. 
520).  These  proceedings  are  not  intended,  however,  to 
take  the  place  of  the  remedy  by  execution  in  reaching 
the  real  property  of  a  judgment  debtor.  {Moyer  v. 
Moyer,  7  App.  Div.  523;  Chadeayne  v.  Gimjer,  83  App. 
Div.  403).  The  rules  of  procedure,  so  far  as  they  have 
not  been  changed  by  the  provisions  of  the  code,  are  the 
same  as  those  which  prevailed  in  respect  to  the  course  of 


500  PRACTICE. 

procedure  iu  a  creditor's  bill.       [^'^mit/i  v.  Mahony,  3 
Daly,  285;  see,  also,  chapter  LVIII,  ante). 

Sec.    2.    "Wlieii   order  way  be   granted. 

Subdivision  1. — In  General. 

In  order  to  entitle  a  judgment  creditor  to  maintain 
either  of  the  special  proceedings  authorized  by  this 
article  (1  of  title  12  of  chapter  XVII  of  the  code), 
the  judgment  must  have  been  rendered  upon  the  judg- 
ment debtor's  appearance  or  personal  service  of  the 
summons  upon  him,  for  a  sum  not  less  than  twenty-five 
dollars  or  substituted  service  of  the  summons  upon  him 
in  accordance  with  section  436  of  the  code;  and  the 
execution  must  have  been  issued  out  of  a  court  of  rec- 
ord; and  either: 

1.  To  the  sheriff  of  the  county  where  the  judgment 
debtor  has,  at  the  time  of  the  commencement  of  the 
special  proceedings,  a  place  for  the  regular  transaction 
of  business  in  person;  or, 

2.  If  the  judgment  debtor  is  then  a  resident  of  the 
state,  to  the  sheriff  of  the  county  where  he  resides;  or, 

3.  If  he  is  not  then  a  resident  of  the  state,  to  the 
sheriff  of  the  county  where  the  judgment  roll  is  filed 
unless  the  execution  was  issued  out  of  a  court  other 
than  that  iu  which  the  judgment  was  rendered,  and,  in 
that  case,  to  the  sheriff'  of  the  county  where  the  tran- 
script of  the  judgment  is  filed.      (Co.  Civ.  Proc.  §  2458). 

Prior  to  1881,  to  entitle  the  judgment  creditor  to  the 
benefit  of  this  proceeding,  he  must  have  recovered  a 
judgment  for  the  sum  of  twenty-five  dollars  "  exclusive 
of  costs;"  but  b}^  the  amendment  in  that  year  (Laws 
1881,  chap.  122)  the  Avords  "exclusive  of  costs"  were 
omitted  from  the  section.  By  the  same  law  the  words, 
"  an  office,"  for  the  regular  transaction  of  business,  were 
changed  to  "  a  place,"  etc.  Prior  to  that  amendment, 
an  order  for  the  examination  of  a  judgment  debtor 
could  not  be  based  upon  a  judgment  for  costs  only 
{Bean  v.  Tonnelle,  24  Hun,  353)  ;  but  since  that  time,  it 
has  been  held  that  such  proceedings  may  be  had  upon  a 
judgment  for  costs  only  {Davis  v.  Herruj,  65  How.  Pr. 


SUPPLEMENTARY    PROCEEDINGS.  501 

290;  Burke  v.  Burke,  27  Misc.  684)  ;  except  in  case  the 
judgment  was  recovered  in  a  justice's  court  (Co.  Oiv. 
Proc.  §  3043),  or  in  the  municipal  court  of  the  city  of 
Rochester  (Laws  1880,  chap.  14;  Mason  v.  Hackett,  35 
Hun,  238),  or  in  the  municipal  court  of  the  city  of 
Syracuse  {Andreios  v.  Mastiu,  22  Misc.  263)  ;  in  which 
cases  the  judgment  must  be  for  twenty-five  dollars  ex- 
clusive of  costs,  in  order  to  be  a  lien  on  real  property. 
In  the  municipal  court  of  the  city  of  New  York  a  judg- 
ment of  twenty-five  dollars  or  more  is  a  charge  on  real 
property;  there  is  no  limitation  as  to  costs.  (Laws 
1902,  chap.  580,  §§  261,  263).  Any  judicial  determina- 
tion of  a  tribunal  of  this  state,  which  adjudges  a  sum 
of  money  of  twenty-five  dollars  or  upwards,  including 
costs,  to  be  due  and  payable  from  one  party  to  another, 
and  upon  which  an  execution  against  property  has  been 
issued  to  the  sheriff,  may  form  the  basis  of  these  pro- 
ceedings, provided  that  the  judgment  was  rendered 
upon  the  appearance  of  the  judgment  debtor  or  per- 
sonal service  of  the  summons  or  process  upon  him,  and 
the  execution  is  issued  out  of  a  court  of  record.  {Bart- 
l€tt  V.  3IcNeil,  60  N.  Y.  53).  The  word  "  appearance  " 
means  a  voluntary  submission  to  the  jurisdiction  in 
whatever  form  manifested;  and  these  proceedings  may 
be  based  upon  a  summary  judgment  entered  upon  a  for- 
feited recognizance  {People  v.  Cowan,  146  N.  Y.  348)  ; 
and,  also,  upon  an  order  of  the  appellate  division  gTant- 
ing  costs  and  disbursements  upon  reversing  an  order  of 
special  term.  {Matter  of  Sirrett,  25  Misc.  89).  But 
where  by  lapse  of  time,  the  judgment  has  ceased,  at  the 
time  execution  is  issued,  to  be  a  lien  on  the  debtor's  real 
property,  the  judgment  creditor  cannot  resort  to  sup- 
plementary proceedings,  as  he  cannot  be  said  to  have 
exhausted  all  legal  remedies.  {Importers  and  Traders' 
Nat.  Bank  v.  Quackenhush ,  143  N.  Y.  567).  As  will 
be  seen  below,  an  exception  is  made  in  those  cases  where 
the  judgment  debtor  is  a  domestic  corporation  or  a 
foreign  corporation  doing  business  in  this  state  as  pro- 
vided by  section  1812  of  the  code  of  civil  procedure,  un- 
less the  proceeding  is  brought  by  or  in  behalf  of  the 
people  of  the  state.      ( Co.  Civ.  Proc.  §  2463 ) .     Proceed- 


502  PRACTICE. 

ings  siipplemL'iilarv  to  execution  caiinot  be  had  in  such 
cases. 

To  authorize  the  examination  of  a  resident  of  the 
state  in  a  county  other  than  that  of  his  residence, 
it  must  appear  that  he  has  a  place  of  business  in 
the  county  where  the  examination  is  sought  for  the 
regular  transaction  of  his  business  in  person,  as 
distinguished  from  the  transaction  of  his  business 
through  his  agents.  {Broicn  V.  Gump,  59  How.  Pr. 
507).  Where  a  transcript  of  a  justice's  judgment  is 
filed  in  two  counties,  and  an  execution  is  issued  out  of 
the  clerk's  office  of  one  county  returnable  to  the  clerk's 
office  of  the  other  county,  supplementary  proceedings 
can  be  had  in  the  county  where  the  execution  was  issued. 
{Stri/hing  v.  Hicks,  2  Law  Bull.  6).  In  that  case  a 
transcript  was  filed  in  both  Kings  and  New  York  coun- 
ties, and  an  execution  was  issued  to  the  sheriff  of  New 
York  count}^,  returnable  to  the  clerk  of  Kings  county; 
and  it  was  held  that  the  order  was  properly  granted 
in  the  court  of  common  pleas  of  New  York  county. 

Supplementary  proceedings  cannot  be  had  where  the 
judgment  debtor  is  a  corporation  created  by  or  under 
the  laws  of  the  state,  or  a  foreign  corporation  specified 
in  section  1812  of  the  code,  except  in  those  actions  or 
special  proceedings  brought  by  or  against  the  people  of 
the  state.  Nor  do  the  code  provisions  as  to  supple- 
mentary proceedings  authorize  the  seizure  of,  or  other 
interference  with,  any  property,  which  is  expressly  ex- 
empt by  law  from  levy  and  sale  by  virtue  of  an  execu- 
tion; or  any  money,  thing  in  action,  or  other  property, 
held  in  trust  for  a  judgment  debtor,  where  the  trust  has 
been  created  by,  or  the  fund  so  held  in  trust  has  pro- 
ceeded from,  a  person,  other  than  the  judgment  debtor; 
or  the  earnings  of  the  judgment  debtor  for  his  personal 
services,  rendered  within  sixty  days,  next  before  the  in- 
stitution of  the  special  proceeding;  where  it  is  made  to 
appear,  by  his  oath  or  otherwise,  that  those  earnings 
are  necessary  for  the  use  of  a  family,  wholly  or  partly 
supported  by  his  labor.      (Co.  Civ.  Proc.  §  2463). 

This  section  was  amended  in  1886  by  the  addition  of 
the  words  "  except  in  those  actions  or  special  proceed- 


SUPPLEMENTARY   PROCEEDINGS.  503 

ings  brought  by  or  against  the  people  of  the  state."  So 
that  since  that  time,  supplementary  proceedings  may  be 
had  in  such  cases,  as  well  as  in  those  mentioned  in  the 
sections  of  the  code  which  provide  for  these  proceedings. 
The  exemption  provided  in  the  section  last  cited,  for 
the  benefit  of  the  debtor,  to  enable  him  to  support  his 
family  out  of  his  earnings,  should  be  liberally  construed 
in  his  favor,  as  it  is  regarded  in  the  light  of  a  purely 
humane  provision.  (Miller  v.  Hooper,  19  Hun,  394). 
Supplementary  proceedings  are  not  the  proper  means 
of  reaching  the  surplus  rents  and  profits  of  property  left 
in  trust  for  the  support  of  the  debtor  [Matter  of  Sey- 
mour, 76  App.  Div.  300)  ;  they  can  only  be  reached  in  a 
suit  for  that  purpose;  nor  can  such  rents  and  profits  be 
recovered  in  a  judgment  creditor's  action  (Co.  Civ. 
Proc.  §  1879 ;  Manning  v.  Evans,  19  Hun,  500 ) ;  but,  as 
was  pointed  out  in  section  2  of  article  I  of  chapter 
LVIII,  ante,  an  action  may  be  maintained  to  reach  such 
surplus  income.  (See,  also,  Wetmore  v.  Wetmore,  149 
N.  Y.  520,  527 ) .  It  was  at  one  time  held  that  creditors 
were  entitled  to  the  earnings  of  a  debtor,  excepting  for 
the  period  of  sixty  days,  computed  from  the  time  the 
motion  is  made  to  have  the  property  of  the  debtor  ap- 
plied to  the  payment  of  the  judgment  (Bush  v.  WJiite, 
12  Abb.  Pr.  21) ;  but  under  section  2463  the  period  is  to 
be  computed  from  the  date  of  the  commencement  of  the 
supplementary  proceedings.  (Matter  of  Trustees  of 
Board  of  Publication,  22  Misc.  645;  Kroner  v.  Reilly, 
49  App.  Div.  41).  Salary  not  due  at  such  date  cannot 
be  reached.  (Kroner  n .  Reilly ,  supra) .  If  such  earn- 
ings are  found  to  be  sufficient  only  for  the  support  of 
the  debtor  and  his  family,  the  proceedings  will  be  dis- 
missed. (Gummings  v.  Timherman,  49  How.  Pr.  236). 
What  constitutes  earnings  is  a  question  of  fact,  and  if 
the  amount  claimed  to  be  earnings,  is  not  in  fact  of  such 
character,  the  court  will  not  hold  it  to  be  exempt. 
(Whalen  v.  Tennison,  1  Law  Bull.  22;  Matter  of 
Wyman,  76  App.  Div.  292).  So  also  where  the  defend- 
ant does  not  contribute  to  the  support  of  his  family, 
but  it  is  supported  by  the  wife,  his  earnings  will  not  be 
treated  as  exempt   (Martin  v.  Sheridan,  2  Hilt.  586) ; 


504  PRACTICE. 

nor  where  the  judgment  debtor  is  not  under  legal  ol)liga- 
tion  to  support  the  family  with  whom  he  lives;  although 
he  may  keep  the  house  and  claim  that  his  earnings  are 
necessary  for  the  sup])ort  of  his  housekeeper  and  her 
children  who  reside  with  him.  {Van  Vechten  v.  Hall, 
14  How,  Pr.  480).  It  is  to  be  noted  that  since  the 
amendment  of  1903  to  section  1391  of  the  code,  wages, 
salary  and  income  from  trust  funds  are,  under  certain 
circumstances,  made  subject  to  the  claims  of  creditors. 
(See  vol.  II,  pp.  980,  lOlG).  It  has  been  doubted 
whether  or  not  the  question  of  fact  whether  property 
claimed  to  be  exempt  is  actually  exempt,  can  be  deter- 
mined in  the  supplementary  proceeding.  {Dickinson  v. 
Onderdonk,  18  Hun,  479).  Such  question  involves  the 
title  of  chattels,  and  is  proper  for  a  jury  trial;  and  if 
the  judgment  creditor  should  levy,  by  virtue  of  an  execu- 
tion, on  the  alleged  exempt  property  of  the  debtor,  such 
debtor  would  have  the  right  to  try  that  question  by  an 
ordinary  action  at  law;  and  if  the  property  taken  should 
be  found  to  be  actually  exempt,  the  debtor  could  not 
only  recover  it  back,  but  whatever  damages  may  have 
been  caused  bv  its  wrongful  taking  and  detention. 
(Id.). 

A\'here  the  judgment  in  an  action,  is  against  the  plain- 
tiff, the  provision  as  to  the  debtor's  appearance,  or  per- 
sonal service,  etc.,  upon  him,  does  not  apply;  because 
the  plaintiff,  by  bringing  his  action,  brings  himself 
within  the  jurisdiction  of  the  court.  {Bean  v.  TonneUe, 
1  Civ.  Proc.  Rep.  Z^;  People  v.  Coioan,  146  N.  Y.  848). 

In  case  the  sheriff  of  any  county  to  whom  a  warrant 
commanding  him  to  make  the  amount  of  taxes  against  a 
person  residing  out  of  the  United  States,  out  of  the 
goods  and  chattels  of  such  non-resident,  has  been  issued 
and  returned  by  him  unsatisfied  in  whole  or  in  part,  pro- 
ceedings, in  all  respects  similar  to  proceedings  provided 
by  the  statute  in  case  of  a  judgment  debtor  after  the 
return  of  an  execution  against  him  wholly  or  partly 
unsatisfied,  may  be  had  by  the  county  treasurer  of  any 
county  against  any  person  having  property  of  the  non- 
resident, or  who  is  indebted  to  him.  (The  Tax  Law 
[Laws  1896,  chap.  908],  §  77). 


SUPPLEMENTARY   PROCEEDINGS.  505 

'  If  a  tax  exceeding  ten  dollars  in  amount  levied 
against  a  person  or  corporation  is  returned  by  the  pro- 
per collector  uncollected  for  want  of  personal  prop- 
erty out  of  which  to  collect  the  same,  the  supervisor  of 
the  town  or  ward,  or  the  county  treasurer  or  the  presi- 
dent of  the  village,  if  it  is  a  village  tax,  may,  within  one 
year  thereafter,  apply  to  the  court  for  the  institution 
of  proceedings  supplementary  to  execution,  as  upon  a 
judgment  docketed  in  such  county-,  for  the  purpose  of 
collecting  such  tax  and  fees,  with  interest  thereon  from 
the  fifteenth  day  of  February  after  the  levy  thereof. 
Such  proceedings  may  be  taken  against  a  corporation, 
and  the  same  proceedings  may  thereupon  be  had  in  all 
respects  for  the  collection  of  such  tax  as  for  the  col- 
lection of  a  judgment  by  proceedings  supplementary  to 
execution  thereon  against  a  natural  person,  and  the 
same  costs  and  disbursements  may  be  allowed  against 
the  person  or  corporation  examined  as  in  such  supple- 
mentary proceedings  but  none  shall  be  allowed  in  his 
or  its  favor.  The  tax,  if  collected  in  such  proceeding, 
shall  be  paid  to  the  county  treasurer  or  to  the  super- 
visor of  the  town,  and  if  a  village  tax,  to  the  treasurer 
of  the  village.  The  costs  and  disbursements  collected 
shall  belong  to  the  party  instituting  the  proceedings, 
and  shall  be  applied  to  the  payment  of  the  expense  of 
such  proceeding.  The  president  of  a  village  and  a 
county  treasurer  shall  have  no  compensation  for  any 
such  proceeding.  A  supervisor  shall  have  no  other  com- 
pensation except  his  per  diem  pay  for  time  necessarily 
spent  in  the  proceeding.  (Tax  Law,  §  259).  Under 
this  section,  supplementary  proceedings  may  be  had  to 
collect  taxes  levied  in  New  York  county.  (Matter  of 
Gould,  75  App.  Div.  576). 

Supplementary  proceedings  may  also  be  taken  for 
a  village  tax.     (Village  Law,  §  126). 

It  is  also  provided  that  a  decree  of  a  surrogate's  court, 
directing  the  payment  of  a  sum  of  money  into  court,  or 
to  one  or  more  parties,  may  be  enforced  by  an  execution 
against  the  property  of  the  party  directed  to  make  the 
payment,  and  that  the  provisions  of  the  code  relating  to 
an  execution  against  the  property  of  a  judgment  debtor, 


506  PRACTICE. 

issued  upou  a  judgment  of  the  supreme  court  and  the 
proceedings  to  collect  it,  apply  to  an  execution  issued 
from  the  surrogate's  court  and  the  collection  thereof, 
the  decree  being,  for  that  purpose,  regarded  as  a  judg- 
ment; except  that  the  proceedings  described  in  title  12 
of  chapter  XVII  of  the  code  (supplementary  proceed- 
ings), if  founded  upon  such  a  decree,  must  be  taken,  as 
if  the  decree  was  a  judgment  of  the  county  court,  or,  in 
the  city  of  New  York,  of  the  supreme  court.  (Co.  Civ. 
Proc.  §  2554). 

An  order  instituting  supplementary  proceedings  may 
be  issued  by  a  judge  of  a  United  States  Court  {Ex  parte 
Boyd,  105  U.  S.  647)  ;  but  no  proceeding  can  be  insti- 
tuted by  a  state  judge  or  justice  upon  the  judgment  of 
the  United  States  court.  ( Tompkins  v.  Purcell,  12  Hun, 
662;  Davis  v.  Bruns,  11  Wk.  Dig.  436;  23  Hun,  648). 

One  of  the  general  requisites,  in  such  cases,  is  that  the 
execution  shall  have  issued  to  the  county  where  the 
judgment  debtor  then  resides  {Bingham  v.  Dishrow,  37 
Barb.  24) ;  or  to  the  county  where  he  has  at  the  time  of 
the  commencement  of  the  proceedings,  a  place  where  he 
regularly  transacts  business  in  person.  {Broion  V. 
Gump,  59  How.  Pr.  507).  But  the  residence  contem- 
plated by  section  2458  of  the  code  is  not  necessarily  the 
debtor's  permanent  residence,  and  where  he  has  a  per- 
manent residence  and  also  a  summer  residence,  an  exe- 
cution issued  to  the  sheriff  of  the  county  in  which  he 
has  his  summer  residence,  and  returned  unsatisfied,  is 
sufficient  to  sustain  the  order.  {Matter  of  Rowland, 
21  App.  Div.  172 ;  affd.  without  op.,  154  N.  Y.  777) .  So, 
also,  where  the  judgment  debtor  had  his  permanent 
residence  in  the  country,  but  had  hired  lodgings  in  the 
city  of  New  York  and  had  occupied  them  from  time  to 
time  for  some  years,  it  was  held  that  the  issuing  of  an 
execution  to  the  sheriff  of  New  York  county  was  suffi- 
cient. {Blatter  of  Rose,  87  App.  Div.  240).  A  school 
teacher,  resident  in  another  county,  but  teaching  in  a 
public  schiDol  in  the  city  of  New  York,  has  a  place  of 
business  therein  within  section  2458  of  the  code  {Burke 
V.  Burke,  27  Misc.  684)  ;  and  so  has  an  agent  for  an 
insurance  company,  having  a  desk  and  chair  in  the  office 


SUPPLEMENTARY   PROCEEDINGS.  507 

of  the  company  in  the  city  of  New  York,  in  the  absence 
of  proof  that  he  was  continuously  away  therefrom  by 
the  requirements  of  his  occupation.  (Batcheldor  v. 
Nugent,  23  Civ.  Proc.  Kep.  178). 

In  case  the  judgment  debtor  is  a  non-resident,  having 
no  place  in  which  he  transacts  business  within  the  state, 
the  proceedings  may  be  had  after  the  issue  of  an  execu- 
tion to  the  county  where  the  judgment  roll  or  transcript 
is  filed.  (Co.  Civ.  Proc.  §  2458).  The  proceedings  may 
be  had  against  a  judgment  debtor  who  was  an  infant 
at  the  time  of  the  recovery  of  the  judgment.  {Lederer 
V.  Ehrenfeld,  49  How.  Pr.  403).  But  if  these  proceed- 
ings are  instituted  against  a  foreign  consul,  who  has 
permitted  judgment  to  be  taken  against  him  by  default, 
he  cannot  be  attached  by  a  warrant  of  arrest  for  refusal 
to  obey  the  order.  {Griffin  v.  Dominguez,  2  Duer,  656). 
The  same  exemption  from  arrest  in  these  proceedings, 
exists  in  his  favor  as  in  an  ordinary  civil  action.  (Vol. 
I,  p.  502).  Where  property,  not  in  the  possession  of 
judgment  debtor,  is  claimed  by  the  person  in  whose  pos- 
session it  is,  the  judge  or  referee  cannot  in  these  pro- 
ceedings, try  the  question  of  title  to  the  property. 
(Crounse  v.  Whipple,  34  How.  Pr.  333).  The  proper 
course  is  to  appoint  a  receiver  of  the  judgment  debtor's 
property,  who  can  bring  an  action  to  determine  the  title 
to  the  property.      (Id.). 

By  the  provisions  of  the  code,  if  the  judgment  cred- 
itor shows  by  affidavit  the  facts  entitling  himself  to 
the  order,  it  will  be  granted,  although  it  may  turn  out 
that  the  property  does  not  belong  to  the  judgment 
debtor ;  and  where  the  title  actually  comes  into  dispute, 
the  court  will  not  make  an  order  directing  the  delivery 
of  the  property  to  the  sheriff  or  receiver.  This  will  be 
more  fully  spoken  of  in  subdivision  four  of  this  section. 

The  proceeding  may  be  instituted  by  an  attorney  in 
his  own  interest,  {^haunessy  v.  Traphagen,  13  N.  Y. 
St.  Kep.  754).  It  is  also  proper  where  the  basis  of  the 
proceeding  is  an  order  directing  the  purchaser  at  a 
judicial  sale,  to  pay  the  difference  on  a  resale;  as  that 
is  a  judicial  determination  of  a  tribunal  of  this  state, 
adjudging  that  a  sum  of  money  is  due  and  payable  from 


508  PRACTICE. 

one  party  to  another.  (Lydccker  v.  Smith,  44  Hun, 
454). 

Supplementary  proceedings  cannot  be  maintained 
upon  a  judgment  of  a  justice's  court,  where  the  tran- 
script was  not  filed  with  the  county  clerk  until  after  the 
expiration  of  six  years.  {Davidson  v.  Horn,  47  Hun, 
51).  This  case  was  decided  prior  to  the  amendments 
of  1894,  which  changed  the  statutory  period  of  limita- 
tion on  a  justice's  judgment  docketed  in  the  county 
clerk's  office  to  twenty  years  (see  aoI.  I,  p.  91),  but  by 
express  provision  of  section  3017  of  the  code  the  judg- 
ment is  required  to  be  docketed  within  six  years,  so  the 
Davidson  case  is  still  authoritative. 

The  term  "  judgment  creditor,"  signifies  the  person 
who  is  entitled  to  collect,  or  otherwise  enforce,  in  his 
own  right,  a  judgment  for  a  sum  of  money,  or  directing 
the  payment  of  a  sum  of  money.  ( Co.  Civ.  Proc.  §  3343, 
subd.  13). 

The  party  to  whom  costs  are  awarded  in  a  special 
proceeding  shall  be  entitled  to  the  same  remedies  under 
title  12  of  chapter  XVII  of  the  code  (supplementary 
proceedings),  under  the  same  circumstances,  as  near 
as  may  be,  as  a  judgment  creditor.  And  for  the  pur- 
poses of  that  title,  the  party  to  whom  such  costs  are 
awarded  shall  be  deemed  a  judgment  creditor,  and  the 
party  against  whom  they  are  awarded  shall  be  deemed 
a  judgment  debtor.  (Co.  Civ.  Proc.  §  2432).  This  was 
added  to  section  2432  by  chap.  176,  Laws  of  1896. 

Where  the  party  applying  for  the  order  is  a  trustee, 
or  acting  in  a  representative  capacity,  the  law  invests 
him  with  the  same  rights  as  would  have  been  possessed 
by  the  person  he  represents,  had  he  applied  for  the  order 
himself.  [CriU  v.  Eornmeyer,  56  Hoav.  Pr.  276;  Pardee 
V.  Tilton,  20  Hun,  76).  So  an  attorney  may  take  pro- 
ceedings to  enforce  the  payment  of  the  judgment  to  the 
extent  of  his  lien  therein.  (Russell  v.  f^omerville,  4  Law 
Bull.  3).  In  such  case  the  affidavit  must  show  the 
status  of  the  attorney.  Where  the  judgment  debtor  is 
dead,  no  proceedings  can  be  instituted  in  his  name,  as 
all  of  his  property  is  carried  by  his  death  into  the  surro- 


SUPPLEMENTARY   PROCEEDINGS.  509 

gate's  court,  where  equality  of  the  same  class  of  claim- 
ants is  the  rule  which  prevails  in  the  distribution  of  the 
decedent's  estate;  but  if  the  judgment  debtor  dies  after 
proceedings  have  been  regularly  begun,  his  death  does 
not  extinguish  the  priority  of  the  lien  which  the  judg- 
ment creditor  acquires  by  his  proceedings.  They  may 
go  on  the  same  as  where  an  execution  is  issued  against 
the  property  of  the  debtor  in  his  life  time.  {Becker  v. 
Becker,  47  Barb.  497).  The  proceedings  cannot  be  had 
where  the  property  of  the  judgment  debtor  is  in  the  cus- 
tody of  an  officer  of  the  court  in  bankruptcy  proceed- 
ings.     (Havens  v.  Katl.  City  Bank,  4  Hun,  131). 

As  has  already  appeared  in  this  section,  supple- 
mentary proceedings  may  be  had  in  three  dijfferent 
classes  of  cases,  which  are  specified  in  the  three  sub- 
divisions of  section  2432  of  the  code  of  civil  procedure, 
besides  those  special  statutory  cases  in  which  a  public 
officer  may  maintain  the  proceeding  for  the  purpose  of 
collecting  delinquent  taxes.  The  cases  coming  under 
the  three  subdivisions  just  referred  to  will  be  particu- 
larly spoken  of  in  the  three  following  subdivisions  of 
this  section. 

Subdivision  2. — After  the  Return  of  an  Execution. 

The  first  remedy  provided  b}^  the  code  of  civil  pro- 
cedure is  for  an  order  or  warrant  issued  against  a  judg- 
ment debtor,  after  the  return  of  an  execution.  (Co.  Civ. 
Proc.  §  2432,  subd.  1). 

At  any  time  within  ten  years  after  the  return,  Avholly 
or  partly  unsatisfied,  of  an  execution  against  property, 
issued  upon  a  judgment,  as  prescribed  in  section  2458 
of  the  code,  or,  in  case  of  an  order,  issued  in  the  same 
manner  so  far  as  the  provisions  of  said  section  can  be 
applied  in  substance,  the  creditor  under  such  judgment 
or  order,  upon  proof  of  the  facts,  by  affidavit  or  other 
competent  written  evidence,  is  entitled  to  an  order,  re- 
quiring the  debtor  under  the  judgment  or  order,  to 
attend  and  be  examined  concerning  his  property,  at  a 
time  and  place  specified  in  the  order.  (Co.  Civ.  Proc. 
§2435). 


510  PRACTICE. 

Where  the  execution  was  issued  as  prescribed  in  sec- 
tion 1934  or  section  1941  of  the  code,  a  debt  due  to,  or 
other  personal  property  owned  by,  one  or  more  of  the 
defendants  not  summoned,  jointly  with  the  defendants 
summoned,  or  with  any  of  them,  may  be  reached  by  a 
special  proceeding,  instituted  as  prescribed  in  this 
article,  and  founded  upon  the  judgment.  (Co.  Civ. 
Proc.  §  2461). 

The  execution  referred  to  in  the  section  last  cited,  is 
one  issued  upon  a  judgment  in  the  plaintiff's  favor, 
against  one  or  more  joint  debtors  who  were  not  served 
with  the  summons  in  the  original  action,  and  who  either 
have  been  or  have  not  been  proceeded  against,  after 
judgment  had  been  entered  against  the  joint  debtors 
who  were  served.  (See  Co.  Civ.  Proc.  §§  1934-1936, 
1937-1941).  See,  also,  chapter  LIX  of  this  book,  article 
III,  section  1,  as  to  judgments  against  joint  debtors, 
when  all  are  not  served,  and  section  2  of  the  same 
article,  as  to  actions  to  charge  defendants  not  sum- 
moned. 

Before  a  creditor  is  entitled  to  an  order  to  examine  a 
judgment  debtor  under  this  subdivision,  he  must  have 
exhausted  his  remedy  at  law.  {Lisner  v.  Toplitz,  86 
App.  Div.  1).  The  question  as  to  whether  the  legal 
remedy  has  been  exhausted  seems  the  same  here  as  in 
the  case  of  a  judgment  creditor's  action,  which  has  been 
discussed  in  section  2  of  article  I  of  chapter  LVIII  of 
this  work,  supra.  It  has  been  held  that  where  the  judg- 
ment was  against  joint  debtors,  the  plaintiff's  remedy 
is  exhausted  against  the  debtors  so  as  to  entitle  him  to 
proceed  in  equity  to  reach  joint  property,  although  in 
the  original  action  the  summons  Avas  served  upon,  and 
judgment  was  entered  and  docketed  against,  only  two 
of  the  joint  debtors,  if  the  execution  was  issued  against 
the  joint  property  of  all  the  joint  debtors  and  returned 
unsatisfied.  [Produce  Bank  v.  Morton,  67  N.  Y.  199). 
If  the  execution  has  been  returned  unsatisfied  without 
fraud  or  collusion  on  the  part  of  the  plaintiff,  although 
the  period  allowed  for  the  return  has  not  expired,  the 
order  may  be  granted.  (Engle  v.  Bonneau,  2  Sand. 
679 ;  High  Rock  Knitting  Co.  v.  Bronner,  18  Misc.  631 ) . 


I 


SUPPLEMENTARY   PROCEEDINGS.  511 

'^f,  however,  the  plaintiff  has  procured  the  return  of  the 
execution  before  the  sixty  days  have  expired,  by  collu- 
sion with  the  sheriff,  he  is  not  entitled  to  the  order,  and 
does  not  acquire  a  right  to  commence  the  proceeding 
until  after  the  return  day  of  the  execution.  {Spencer 
V.  Cuyler,  17  How.  Pr.  157 ) .  But  if  the  sheriff  returns 
the  execution  unsatisfied  in  whole  or  in  part  before  the 
expiration  of  the  sixty  days,  without  collusion  with  the 
creditor  or  his  attorney,  the  creditor  is  not  obliged  to 
wait  until  the  expiration  of  the  sixty  days,  but  may 
proceed  immediately  upon  the  return  of  the  execution. 
[Tyler  v.  Whitney,  12  Abb.  Pr.  465) .  It  is  not  fraud  or 
collusion  on  the  part  of  the  plaintiff  or  his  attorney 
simply  to  have  requested  the  sheriff  to  return  the  exe- 
cution. To  constitute  that  defense  the  plaintiff  must 
by  collusion  with  the  sheriff  have  procured  a  return  of 
the  execution  unsatisfied,  without  an  attempt,  in  good 
faith,  to  find  goods  subject  to  levy.  {Forhes  v.  Waller, 
25  N.  Y.  430).  The  right  to  the  order  in  this  class  of 
cases  depends  on  the  return  of  an  execution  unsatisfied 
in  whole  or  in  part.  {Oioen  v.  Dupignac,  9  Abb.  Pr. 
180).  The  mere  fact  that  the  judgment  debtor  had 
property  which  the  sheriff  ought  to  have  taken  and  sold 
for  the  purpose  of  satisfying  the  judgment,  will  not 
affect  the  right  of  the  judgment  creditor  to  the  remedy. 
{Fenton  v.  Flagg,  24  How.  Pr.  499).  This  is  true  even 
though  the  sheriff  had  notice  of  property  or  some  in- 
terest in  property  which  might  have  been  sold  on  the 
execution.  {Stoors  v.  Eelsey,  2  Paige,  418).  The 
proper  remedy  of  the  debtor  in  such  case  is  to  move  to 
set  aside  the  return,  or  to  bring  an  action  against  the 
sheriff  for  damages,  if  any  have  been  caused  by  the 
wrongful  act  of  the  sheriff.  (Id.).  Where  the  judg- 
ment debtor  can  show  an  interference  on  the  part  of  the 
plaintiff  with  the  acts  of  the  sheriff,  w^hich  amounts  to 
fraud  or  collusion,  it  is  a  good  defense,  and  the  order 
should  be  vacated.  (Spencer  v.  Cuyler,  17  How.  Pr. 
157).  This  is  on  the  theory  that  where  there  is  suffi- 
cient reason  to  question  the  good  faith  of  a  return  made 
before  the  expiration  of  the  sixty  days,  and  the  sheriff 
acts  manifestly  on  the  procurement  of  the  creditor  or 


512  PRACTICE. 

his  attorney,  the  remedy  by  execution  has  not  been  ex- 
hausted; and  the  party  until  he  has  exhausted  his 
remedy  at  law  is  not  entitled  to  an  order  instituting 
supplementary  proceedings.  [Farquaharson  v.  Kim- 
hall ,  0  Abb.  Pr.  385,  note). 

Where  the  execution  has  been  properly  returned,  the 
law  regards  the  remedy  at  law  as  being  exhausted,  and 
the  order  may  be  granted.  After  the  order  has  been 
granted,  it  is  no  objection  to  proceeding  under  such 
order  that  the  creditor  has  caused  another  execution  to 
be  issued  against  the  projoerty  of  the  debtor,  and  the 
sheriff  has  made  a  levy  upon  the  property  of  the  defend- 
ant, unless  such  levy  is  clearly  sufficient  to  satisfy  the 
judgment.  {Sale  v.  Lawson,  4  Sand.  718;  Smith  v. 
Davis,  63  Hun,  100).  The  two  modes  of  seeking  satis- 
faction, are  not  at  all  inconsistent  with  each  other,  but 
may  proceed  together  until  one  or  the  other  has  resulted 
in  the  satisfaction  of  the  debt.  {Lilliendalil  V.  Feller- 
man,  11  How.  Pr.  528;  Smith  v.  Gutter,  64  App.  Div. 
412).  But  it  has  been  held,  by  Judge  McAdam,  in  the 
city  court  of  New  York,  that,  if  a  levy  is  made  under  the 
second  execution,  it  suspends  the  supplementary  pro- 
ceeding until  the  return  of  the  sheriff;  and  if  an  order 
is  made  after  such  levy,  it  should  be  dismissed.  {Stein- 
harclt  v.  Michalda,  15  Civ.  Proc.  Rep.  323).  It  is  no 
reason  for  staying  the  examination,  that  after  making 
and  before  serving  the  order,  the  judgment  creditor  has 
caused  an  attachment  to  be  issued  against  the  judgment 
debtor  as  a  non-resident  {Hanson  v.  Tripler,  3  Sand. 
733)  ;  or  that  the  judgment  creditor  institutes  an  action 
to  set  aside  an  assignment  made  by  the  debtor,  as 
fraudulent  and  void  as  against  creditors.  Such  an 
action  is  entirely  different  in  its  objects  from  the  sup- 
plementary proceedings,  and  the  judgment  creditor  will 
not  be  compelled  to  elect  between  the  two  proceedings, 
and  to  proceed  in  one  only.  ( Taylor  v.  Persse,  15  How. 
Pr.  417).  If  two  executions  have  been  issued,  and  only 
one  returned,  the  order  is  regular,  although  the  other 
execution  is  outstanding  {Oiven  v.  Dnpignac,  9  Abb.  Pr. 
180)  ;  in  that  case  the  first  execution  had  been  returned 


SUPPLEMENTARY   PROCEEDINGS.  513 

fifteen  years.  By  section  2435  above  cited,  the  time 
within  which  supplementary  proceedings  may  be 
brought,  is  limited  to  ten  years  after  the  return  of  the 
execution.  This  is  in  analogy  to  the  rule  in  case  of  a 
creditor's  bill.  {Corning  v.  Stebhins,  1  Barb.  Ch.  589). 
It  has  been  held  that  the  creditor's  remedy  is  not  limited 
to  the  first  execution,  and  that,  where  the  first  execution 
was  returned  fourteen  years  before  the  second  execu- 
tion was  issued,  if  such  second  execution  was  properly 
issued  upon  leave  of  the  court,  the  order  might  be  based 
on  such  second  execution.  {Levy  v.  Kirhy,  7  Civ.  Proc. 
Rep.  98).  But  a  different  rule  has  been  laid  down  in 
later  cases  {Cleveland  v.  Johnson,  5  Misc.  484;  Bdumler 
V.  Acker  man,  63  Hun,  40)  ;  and  if,  when  the  second  exe- 
cution is  issued,  the  judgment  has  ceased  to  be  a  lien 
on  real  property,  supplementary  proceedings  cannot  be 
based  upon  the  return  unsatisfied  of  the  second  execu- 
tion. {Importers  and  Traders'  Nat.  Bank  v.  Quacken- 
hush,U^^.  Y.  567). 

Section  2435  does  not  authorize  supplementary  pro- 
ceedings where  execution  had  been  issued  on  an  order 
for  support  of  the  wife  and  children  pending  an  action 
for  divorce  or  separation,  as  the  code  does  not  authorize 
an  execution  in  such  case.  {Weher  v.  Weher,  93  App. 
Div.  149). 

As  we  have  seen  in  subdivision  one,  above,  where  a 
proceeding  in  the  nature  of  a  supplementary  proceed- 
ing is  brought  by  the  treasurer  of  a  county,  or  the  presi- 
dent of  a  village  to  collect  a  tax,  it  must  be  brought 
within  one  year  from  the  time  the  collector  has  returned 
his  warrant  wholly  or  partly  unsatisfied.  (Tax  Law, 
§  259).  Where  judgment  was  rendered  in  an  action 
against  partners  upon  a  partnership  obligation,  but 
where  the  summons  was  served  only  upon  one  of  the 
partners,  and  the  judgment  was  entered  against  all  the 
partners,  but  bound  only  the  individual  property  of  the 
partner  served,  an  execution  against  the  joint  property 
of  all  the  defendants,  returned  unsatisfied,  is  a  suffi- 
cient exhaustion  of  the  remedy  at  law  upon  that  judg- 
ment, to  entitle  the  creditor  to  proceed  in  equity  to 
33 


514  PRACTICE. 

search  for  joint  property,     [rerkins  v.  Kendall^  3  Civ. 
Proe.  Kep.  L'40j. 

Subdivision  3. — After  Issue  and  Before  Return  of 

Execution, 

The  second  remedy  provided  by  the  code  of  civil  pro- 
cedure, is  for  an  order  made  or  a  warrant  issued  against 
a  judgment  debtor,  after  the  issuing  and  before  the  re- 
turn of  an  execution.     (Co.  Civ.  Proc.  §  2432,  subd.  2). 

At  any  time  after  the  issuing  of  an  execution  against 
property,  as  prescribed  in  section  245S  of  the  code,  and 
before  the  return  thereof,  the  judgment  creditor,  upon 
proof,  by  affidavit,  or  other  competent  written  evidence, 
that  the  judgment  debtor  1ms  property,  which  he  un- 
justly refuses  to  apply  towards  the  satisfaction  of  the 
judgment,  is  entitled  to  an  order,  requiring  the  judg- 
ment debtor  to  attend  and  be  examined  concerning  his 
property,  at  the  time  and  place  specified  in  the  order. 
(Co.  Civ.  Proc.  §  2436). 

The  proceedings  mentioned  in  this  subdivision,  are 
rather  in  aid  of  an  execution,  than  supplementary 
thereto.  They  enable  the  plaintiff  to  discover  the  prop- 
erty of  the  judgment  debtor  who  is  concealing  it.  Where 
the  property  is  beyond  the  reach  of  an  execution,  or  is, 
for  some  reason,  not  subject  to  levy,  it  enables  the  court, 
or  judge,  at  once  to  appoint  a  receiver,  in  order  to  reach 
it  by  that  remedy.  The  facts  entitling  the  judgment 
creditor  to  this  remedy  should  be  clear;  and  he  is  re- 
quired to  comply  closely  with  the  requirements  of  the 
section,  and  to  show  to  the  satisfaction  of  the  judge 
that  the  judgment  debtor  not  only  has  property,  l)ut 
that  he  unjustly  refuses  to  apply  it  to  the  payment  of 
the  judgment.  AYhere,  however,  the  affidavit  shows 
such  facts,  the  order  may  be  granted,  and  the  examina- 
tion may  be  as  complete  as  in  a  case  where  the  order  is 
gi-anted  after  the  return  of  an  execution.  The  issuing 
of  an  execution,  in  the  cases  specified,  is  always  neces- 
sary as  a  condition  precedent  to  the  right  of  the  judg- 
ment creditor  under  this  subdivision,  to  apply  for  the 
order.     ( Sackett  v.  Xeicton,  10  How.  Pr.  560).      While 


SUPPLEMENTARY    PROCEEDINGS.  515 

the  statute  requires  that  an  execution  shall  have  been 
issued,  as  a  condition  precedent  to  applying  for  an 
order  under  this  subdivision,  vet  the  time  is  not  limited 
after  the  execution  has  once  been  issued,  within  which 
the  proceeding  may  be  begun,  except  the  general  limita- 
tion of  ten  years ;  for  the  language  of  the  section  is  that 
"  at  any  time  "  after  the  issuing  of  the  execution,  the 
creditor  is  entitled  to  his  order,  upon  making  the  neces- 
sary proof.      (Co.  Civ.  Proc.  §  2436). 

The  proceedings  under  this  subdivision,  where  the 
order  is  granted,  are  the  same  as  under  the  first  sub- 
division; and  it  is  not  necessary  to  examine  them 
separately  here;  but  they  will  all  be  discussed  together. 

Proceedings  before  the  return  of  execution  cannot  be 
maintained  to  enforce  the  payment  of  alimony  granted 
pendente  lite;  such  orders  not  being  within  the  terms 
of  section  2436.      {Ostrom  v.  Ostrom,  38  Misc.  232). 

Subdivision  4. — Against  Third  Person,  etc. 

The  third  remedy  provided  by  the  code  of  civil  pro- 
cedure is  for  an  order,  made  after  the  issuing,  and  either 
before  or  after  the  return,  of  an  execution,  against  a  per- 
son who  has  property  of  the  judgment  debtor,  or  is  in- 
debted to  him. 

The  proceedings  under  this  subdivision  may  be  pur- 
sued, either  alone,  or  simultaneously  with  the  proceed- 
ings under  either  subdivision  first  or  subdivision  second 
of  this  section.     (Co.  Civ.  Proc.  §  2432,  subd.  3). 

Upon  proof,  by  affidavit,  or  other  competent  written 
evidence,  to  the  satisfaction  of  the  judge,  that  an  execu- 
tion against  property  has  been  issued,  as  prescribed  in 
section  2458  of  the  code,  and  either  that  it  has  been 
returned  wholly  or  partly  unsatisfied,  or  that  it  has 
not  been  returned ;  and  also  that  any  person  or  corpora- 
tion has  personal  property  of  the  judgment  debtor,  ex- 
ceeding ten  dollars,  in  value,  or  is  indebted  to  him  in  a 
sum  exceeding  ten  dollars;  the  judgment  creditor  is 
entitled  to  an  order  requiring  that  person  or  corpora- 
tion to  attend  and  be  examined  concerning  the  debt,  or 
other  property,  at  a  time  and  place  specified   in  the 


516  PRACTICE. 

order.  The  judge  may,  in  his  discretiou,  require  notice 
of  the  subsequent  proceedings  to  be  given  to  the  judg- 
ment debtor,  in  such  a  manner  as  he  deems  just.  But  a 
receiver  shall  not  be  appointed  without  such  a  notice, 
except  as  otherwise  prescribed  in  article  2  of  title  12  of 
chapter  XVII  of  the  code.      (Co.  Civ.  Proc.  §  2111). 

Proceedings  to  examine  a  person  who  is  indebted  to  a 
judgment  debtor,  must  be  instituted  in  the  county  where 
the  judgment  debtor  resides.  It  would  occasion  an  un- 
necessary degree  of  hardship  and  inconvenience  toward 
the  judgment  debtor,  without  any  corresponding  benefit 
to  the  creditor,  if  the  creditor  were  allowed  to  inaugu- 
rate the  proceedings  in  any  county  to  which  execution 
has  been  issued.  {Merrill  v.  Allin,  46  Hun,  623).  To 
allow  the  proceedings  to  be  taken,  or  continued  without 
any  notice  to  the  judgment  debtor,  would  often  open  the 
door  to  injustice  and  fraud;  and  notice  should  in  all 
cases  be  given,  unless  by  giving  the  notice,  there  would 
be  a  failure  of  justice,  as  by  giving  a  dishonest  debtor 
an  opportunity  of  removing  his  property'  from  the  juris- 
diction of  the  courts  of  this  state.  But,  sometimes  it 
is  impossible  to  give  such  notice,  as  in  cases  where  he 
has  left  the  state  or  conceals  himself.  In  all  cases,  how- 
ever, the  matter  of  giving  notice  is  left  to  the  discretion 
of  the  judge;  and  whether  or  not  a  notice  shall  be  given 
to  the  judgment  debtor,  should  be  determined  by  the 
circumstances  of  each  case.  (Throop's  note  to  §  2441). 
The  exception  referred  to  in  the  last  clause  of  section 
2441  as  to  the  appointment  of  a  receiver,  refers  to  the 
provisions  of  section  2464  of  the  code,  which  will  be 
found  treated  of  in  article  fifth  of  this  chapter. 

Proceedings  against  third  persons,  or  corporations, 
who  are  not  interested  in  the  judgment  or  execution, 
are,  at  the  best,  measures  of  a  harsh  nature ;  and  should 
not  be  ordered  except  in  a  clear  case;  and  then  only  on 
proof  which  is  more  than  the  mere  information  and 
belief  of  the  judgment  creditor.  (People  v.  Jones,  1 
Abb.  N.  C.  172).  In  the  case  of  Daij  V.  Lee  (52  How. 
Pr.  95)  the  court  says  that  many  cases  have  come  be- 
fore it  where  third  persons  have  been  damaged  by  such 
orders,  without  any  reason  whatever;  that  such  orders 


SUPPLEMENTARY   PROCEEDINGS.  517 

are  a  hardship  and  should  be  discountenanced ;  and  that 
there  is  necessity  of  a  rule  requiring  the  facts  to  be 
stated,  and  not  the  mere  opinion  or  belief  of  the  judg- 
ment debtor.  Proof  positive  is  not,  however,  required. 
(Carley  v.  Tod,  56  App.  Div.  170).  A  third  person 
cannot  be  examined  in  proceedings  supplementary  to 
execution,  as  to  the  property  of  the  judgment  debtor, 
where  the  judgment  debtor  is  a  corporation  created  by 
the  laws  of  this  state  {Fitchhurgh  Nat.  Bank  v.  Bush- 
wick  Chem.  Wks.,  13  Civ.  Proc.  Rep.  155)  ;  nor  where 
the  property  in  the  hands  of  the  third  person  is  held  by 
him  as  receiver,  although  it  belongs  to  the  judgment 
debtor.  (Id.).  Where,  however,  a  corporation  may 
be  examined,  as  provided  in  section  2441  of  the  code, 
its  books  may  be  procured  by  means  of  an  ordinary 
subpoena  duces  tecum  served  on  the  officer  having 
charge  of  the  books ;  but  it  is  not  sufficient  if  such  sub- 
poena is  served  upon  a  mere  employee  of  the  corpora- 
tion.     {Wainwright  v.  Tifjfing,  13  Civ.  Proc.  Rep.  222). 

The  appointment  of  a  receiver  in  proceedings  supple- 
mentary to  execution  does  not  prevent  the  judgment 
creditor  from  obtaining  an  order  for  the  examination 
of  a  third  person.  (Smith  v.  Gutter,  64  App.  Div.  412). 
Such  third  party  cannot  avoid  examination  by  sub- 
mitting at  the  time  fixed  therefor  an  affidavit  setting 
forth  the  property  of  the  judgment  debtor  which  such 
third  party  has  received,  and  the  agreement  under 
which  he  holds  it.  [Matter  of  DeLeon,  63  App.  Div. 
41).  Although  section  2441  expresses  no  limitation  of 
time,  nevertheless  the  lapse  of  ten  years  after  the  return 
of  execution  bars  the  judgment  creditor's  right  to  ex- 
amine a  third  person.  (Peck  v.  Disken,  41  Misc.  473). 
The  third  person  cannot  have  the  order  for  his  examina- 
tion vacated  because  of  irregularities  in  the  entry  of  the 
judgment  on  which  the  order  is  based  (Bucki  v.  Bucki, 
26  Misc.  69)  ;  but  where  the  alleged  judgment  is  void, 
the  court  will  upon  his  application  vacate  the  order  for 
his  examination.  [Matter  of  Stewart,  39  Misc.  275; 
40  Misc.  32;  affd.  on  op.  below,  86  App.  Div.  627). 

As  has  been  heretofore  noted,  the  question  of  the  title 
of  property  in  the  hands  of  a  third  person  which  is 


518  PRACTICE. 

claiiuud  by  such  third  pci-son,  cuduoI  be  li'icd  iu  .supple- 
mentary proceediugs.  A  creditor  upou  uiakinj^  proof 
by  affidavit,  or  by  other  competeut  written  evidence,  of 
the  facts  required  by  section  2441  of  the  code,  is  en- 
titled to  the  order  requiring  such  person  or  corporation 
to  attend  and  be  examined  concerning  the  debt  or  other 
property",  at  a  time  and  place  specified  in  the  order; 
but  as  the  order  is  ex  parte,  and  granted  without  an 
opportunity  being  given  to  such  third  person  or  corpo- 
ration to  oppose  the  motion,  b}"  affidavits  showing  that 
such  property  does  not  actually  belong  to  the  judgment 
debtor,  while  such  an  order  Avill  be  sufficient  to  compel 
a  person  or  corporation  to  appear  before  the  judge  or 
referee,  it  cannot,  nor  can  the  proceedings  had  under 
it,  determine  the  rights  of  such  third  person  or  corpo- 
ration, if  he  or  it  claims  to  be  the  real  owner  of  the 
property.  The  proof  given  by  the  plaintiff  is  sufficient 
to  give  the  judge  jurisdiction  to  grant  the  order;  and 
it  is  usually  granted,  almost  as  a  matter  of  course,  upon 
the  proper  proof  being  i)resented ;  but  where  the  person 
or  corporation  thus  ordered  to  appear,  to  be  examined, 
by  affidavit,  or  other  evidence,  sets  up  a  claim  to  the 
property,  and  that  the  title  thereof  is  in  himself  and 
not  in  the  judgment  debtor,  the  proceedings  cannot  be 
continued  to  test  that  question.  The  judge  has  no 
power  to  try  the  question  of  title.  The  proper  course 
is  to  apply  to  the  court  or  judge  for  the  appointment  of 
a  receiver  of  the  debtor's  property;  and  after  such  ap- 
pointment, he  may  bring  an  action  to  test  the  title  of  the 
property.  {Crounse  v.  Whipple,  31  How.  Pr.  333; 
Teller  v.  Randall,  40  Barb.  242).  Supplementary  pro- 
ceedings are  limited  to  reaching  the  property  of  the 
debtor,  which  is  either  in  his  possessiou,  or  in  the  pos- 
session of  another  party,  but  conceded  to  belong  to  the 
debtor,  or  when  there  is  no  substantial  claim  made  to 
it  by  such  other  party.  (Id.).  Where,  however,  the 
adverse  claimant  petitions  the  court  to  investigate  and 
determine  his  claim,  and  presents  proof  thereof,  he  is 
bound  by  the  determination.  {Gomprecht  v.  Scott,  27 
Misc.  192). 


SUPPLEMENTARY    PROCEEDINGS.  519 

Sec.    3.   Before  -nrliat  jndge  proceedings  Iiad. 

Either  special  proceedings  may  be  instituted  before  a 
judge  of  the  court,  out  of  which,  or  the  county  judge, 
the  special  county  judge,  or  the  special  surrogate,  of  the 
county  to  which  the  execution  was  issued;  or  where  it 
was  issued  to  the  city  and  county  of  New  York,  from  a 
court  other  than  the  city  court  of  that  city,  before  a  jus- 
tice of  the  supreme  court  for  that  city  and  county. 
Where  the  execution  was  issued  out  of  a  court  other 
than  the  supreme  court,  and  it  is  shown  by  affidavit, 
that  each  of  the  judges,  before  whom  the  special  pro- 
ceedings might  be  instituted,  as  prescribed  by  this  sec- 
tion, is  absent  from  the  county,  or,  for  any  reason, 
unable  or  disqualified  to  act,  the  special  proceedings 
may  be  instituted  before  a  justice  of  the  supreme  court. 
In  that  case,  if  he  does  not  reside  within  the  judicial 
district  embracing  the  county  to  which  the  execution 
was  issued,  the  order  made  or  warrants  issued  by  him 
must  be  returnable  to  a  justice  of  the  supreme  court, 
residing  in  that  district,  or  the  county  judge,  or  the 
special  judge,  or  special  surrogate,  of  that  or  an  ad- 
joining county,  as  directed  in  the  order  or  warrant. 
Where  the  judgment  upon  which  the  execution  was 
issued  was  recovered  in  a  district  court  of  the  city  of 
New  York,  either  special  proceeding  shall  be  instituted 
before  a  justice  of  the  city  court  of  the  city  of  New 
York.      (Co.  Civ.  Proc.  §  2434). 

Many  of  the  provisions  of  this  section  are  substan- 
tially the  same  as  those  of  section  two  hundred  and 
ninety-two  of  the  code  of  procedure,  so  rulings  un- 
der such  provisions  of  that  code  are  authoritative 
on  the  law  as  it  now  is  in  force.  A  justice  of 
the  supreme  court  in  any  department  has  power  to 
grant  an  order  instituting  these  proceedings.  Such 
powers  are  co-extensive  with  the  boundaries  of  the 
state,  and  all  proceedings  may  be  had  before  him  any- 
where in  the  state,  if  the  judgment  is  one  in  his  own 
court,  except  that  he  cannot  compel  the  attendance  of 
the  judgment  debtor  at  any  place,  other  than  in  the 
county   of  such   judgment   debtor's  residence;   as   the 


520  PRACTICE. 

debtor  cannot  be  required  to  attend  in  any  other  county 
than  that  of  his  residence,  or  where  he  has  a  place  for 
the  transaction  of  his  roiiular  business  in  person. 
(Grouse  v.  Wheeler,  o3  How.  Pr.  337;  BiiKjham  v.  Dis- 
trow,  14  Abb.  Pr.  251).  A  justice  of  the  supreme  court 
may  act  in  any  case  upon  the  necessary  facts  being  pre- 
sented to  him  by  atlidavit,  duly  verified,  without  regard 
to  his  residence  or  location.      (Id.). 

The  order  is  within  the  jurisdiction  of  the  judge  of 
the  county  to  which  the  execution  has  been  issued  {Mil- 
ler V.  Adams,  52  N.  Y.  409 )  ;  although  the  execution  was 
made  returnable  to  another  county.  {Stnj'bing  v. 
Hicks,  2  Law  Bull.  6) .  A  county  judge  cannot  make  an 
order  to  examine  a  third  party  on  a  judgment  in  the 
supreme  court,  unless  an  execution  has  been  issued 
to  his  county.  {Terry  v.  Eultz,  8  Abb.  Pr.  N.  S.  109). 
A  judge  of  the  city  court  of  New  York  city  has  juris- 
diction to  entertain  these  proceedings  in  the  same  man- 
ner and  with  like  effect  as  other  courts  of  record;  as 
that  court  was  by  the  Laws  of  1872  made  a  court  of 
record  (Laws  1872,  chap.  629)  ;  but  the  right  was  not 
given  to  such  court  to  entertain  these  proceedings  un- 
til 1874.  (Laws  1874,  chap.  545).  While  that  statute 
has  itself  been  repealed  by  the  general  repealing  act  of 
1880,  the  right  of  a  judge  of  that  court  to  entertain  these 
proceedings,  was  retained  by  section  2434  of  the  code  of 
civil  procedure,  cited  above.  {People  v.  Levy,  IG  Misc. 
615).  The  city  court  of  the  city  of  New  York  is  ex- 
cepted from  the  provisions  of  that  section  in  so  far  as 
they  relate  to  bringing  the  proceeding  before  a  justice 
of  the  supreme  court.  Where  the  execution  is  issued 
from  any  court  of  the  city  of  New  York,  other  than  the 
city  court  of  that  city,  the  proceeding  must  be  com- 
menced before  a  justice  of  the  supreme  court  in  that 
county;  but  where  the  execution  is  issued  from  the  city 
court,  the  proceeding  is  begun  before  a  judge  of  that 
court,  save  in  case  of  the  absence,  inability  or  dis- 
qualification of  the  judges  of  the  city  court  as  stated  in 
section  2434.  And  it  has  been  held  that  a  judge  of  that 
court  had  jurisdiction  of  the  proceeding,  even  after  a 
transcript  of  judgment  recovered  in  such  court  had  been 


SUPPLEMENTARY    PROCEEDINGS.  521 

filed  in  the  county  clerk's  office.  {Holhrook  v.  Orgler, 
49  How.  Pr.  289). 

Where  the  proceeding  includes  an  application  for  a 
warrant  for  the  arrest  of  the  judgment  debtor,  it  may  be 
brought  before  the  same  judges  or  justices,  as  where 
merely  the  examination  of  the  judgment  debtor  is  de- 
sired; and  where  such  order  for  the  arrest  of  the  judg- 
ment debtor  is  made  by  a  justice  of  the  supreme  court 
at  chambers,  it  is  not  necessary  that  the  judge  reside 
in  the  same  county  as  the  debtor  ( Wilson  V.  Andrews,  9 
How.  Pr.  39) ;  nor  in  the  judicial  district;  but  if  he  does 
not  reside  in  the  same  judicial  district  embracing  the 
county  to  which  the  execution  was  issued,  the  order  or 
warrant  issued  by  him,  must  be  made  returnable  to  a 
justice  of  the  supreme  court  residing  in  that  district,  or 
to  the  county  judge  or  the  special  county  judge  or 
special  surrogate  of  that  or  of  an  adjoining  county,  as 
directed  in  the  order  or  warrant.  (Co.  Civ.  Proc.  § 
2434).  The  power  of  a  justice  of  the  supreme  court  to 
grant  an  order  or  a  warrant  of  arrest  to  be  executed  in 
a  distant  part  of  the  state,  should  not  be  exercised,  un- 
less to  prevent  a  failure  of  justice.  (Wilson  v.  An- 
drews, supra).  A  judge  may  entertain  the  proceeding 
upon  an  execution  against  property,  issued  out  of  his 
own  court;  and  such  execution  need  not  have  been 
issued  to  his  own  county.  (Gould  v.  Moore,  51  How. 
Pr.  188). 

In  the  city  and  county  of  New  York,  and  in  the  county 
of  Kings,  a  special  proceeding  instituted  before  a  judge 
of  a  court  of  record,  or  a  proceeding  commenced  before 
a  judge  of  the  court,  out  of  court,  in  an  action  or  special 
proceeding  pending  in  a.  court  of  record,  may  be  con- 
tinued from  time  to  time,  before  one  or  more  other 
judges  of  the  same  court,  with  like  effect,  as  if  it  had 
been  instituted  or  commenced  before  the  judge  who  last 
hears  the  same.      (Co.  Civ.  Proc.  §  26). 

In  case  of  the  death,  sickness,  resignation,  removal 
from  office,  absence  from  the  county,  or  other  disability 
of  an  officer,  before  whom  a  special  proceeding  has  been 
instituted,  where  no  express  provision  is  made  by  law 
for  the  continuance  thereof,  it  may  be  continued  before 


o-'l  PRACTICE. 

the  officer's  siiccessorj  or  auy  other  officer  residinjj;  in 
the  same  coimtv,  before  whom  it  might  have  been  orig- 
inally instituted;  or,  if  there  is  no  such  officer  in  the 
same  county,  before  an  officer  in  an  adjoining  county, 
who  would  originally  have  had  jurisdiction  of  the  sub- 
ject-matter, if  it  had  occurred  or  existed  in  the  latter 
county.      (Co.  Civ.  Proc.  §  52). 

The  two  sections  just  quoted  apply  to  a  special  pro- 
ceeding instituted  supplementary  to  an  execution  issued 
against  property;  and  the  judge  before  whom  it  is  con- 
tinued as  prescribed  in  either  of  those  sections  is 
deemed  to  be  the  judge  to  whom  an  order  or  warrant  is 
returnable,  for  the  purpose  of  any  of  the  provisions  of 
the  article  of  the  code  relating  to  proceedings  to  com- 
pel the  examination  of  the  judgment  debtor,  or  his 
debtor  or  bailee,  or  to  the  article  relating  to  the  appoint- 
ment of  a  receiver  in  such  cases.  (Co.  Civ.  Proc. 
§  2462). 

Sec.    4.    The  affidavit. 

Subdivision  1. — To  Obtain  Order  for  Examination. 

Where  the  proceeding  is  brought,  after  the  return  of 
an  execution,  as  provided  by  subdivision  one  of  section 
2432,  the  judgment  creditor  must  prove  by  affidavit,  or 
other  competent  written  evidence,  that  the  proceeding  is 
commenced  within  ten  years  after  the  return  of  an 
execution  against  property;  that  an  execution  was  duly 
issued  out  of  a  court  of  record,  and  upon  a  judgment, 
specified  in  section  2458  of  the  code,  or  upon  a  final 
order  in  a  special  proceeding  as  specified  in  section 
2432;  and  that  such  execution  has  been  returned  wholly 
or  partly  unsatisfied.  Under  section  two  hundred 
and  ninety-two  of  the  code  of  procedure,  it  was 
held  that  an  affidavit  was  not  necessary  to  give  the 
court  jurisdiction  of  the  proceeding.  (Scott  v.  Durfce, 
59  Barb.  390,  note;  Collier  v.  De  Revere^  7  Hun, 
61).  In  the  case  last  cited,  Talcott^  J.,  says  that 
he  apprehended  that  the  affidavit  had  been  required 
by  the  officer  to  whom  the  application  was  made, 
for  his  own  private  satisfaction,  because  he  must, 
in  general,  be  ignorant  of  the  facts  which  entitle  the 


SUPPLEMENTARY    PROCEEDINGS.  523 

part}'  to  the  order;  vet  if  he  sees  fit  to  grant  the  order, 
on  the  mere  statement  of  the  applicant,  he  may  do  so, 
taking  the  responsibility  of  being  able  to  prove  the 
existence  of  the  necessary  facts  when  called  upon;  and 
that  an  objection  to  the  sufficiency  of  the  affidavit  pre- 
sented for  the  purpose  of  obtaining  such  an  order  could 
not  be  made  by  the  defendant.  In  that  case  the  ob- 
jection to  the  affidavit  was  that  it  did  not  recite  that 
the  proceeding  was  begun  by  the  personal  representa- 
tives of  the  deceased  judgment  creditor,  and  did  not 
refer  to  the  decease  of  the  original  plaintiff,  or  that  the 
proceeding  was  instituted  in  behalf  of  the  executrix. 
The  court  held  that  the  existence  of  the  necessary  facts, 
was  all  that  was  required;  and  if  the  court  was  satis- 
fled  that  such  facts  existed,  the  judge  might  make  the 
order;  and  that  the  existence  of  such  facts  was  not  re- 
quired to  be  made  to  appear  by  formal  proof,  further 
than  such  as  the  officer  might  require  to  satisfy  his  own 
conscience. 

Under  the  code  of  civil  procedure,  the  section  of  the 
code  of  procedure  from  which  the  rule  is  taken,  was 
amended  by  requiring  the  proof  of  all  the  facts  neces- 
sary to  give  the  judge  jurisdiction.  Such  proof  must  be 
made  by  affidavit  or  other  competent  written  evidence, 
as  by  the  production  of  letters  testamentary,  in  case 
the  proceeding  is  instituted  by  the  administrator  of  a 
deceased  judgment  creditor,  or  the  written  assignment 
of  the  judgment,  in  case  the  proceeding  is  brought  by 
the  assignee  of  the  judgment  creditor;  for,  as  we  have 
seen,  the  term  "judgment  creditor"  includes  the  personal 
representatives  and  assignees  of  such  judgment  creditor 
as  well  as  the  creditor  himself.  Under  the  code  of 
procedure  it  was  considered  to  be  better  practice,  to 
show  all  of  the  facts  by  affidavits,  even  though  under 
that  practice,  an  affidavit  was  not  necessary.  But  under 
the  present  code,  an  affidavit,  or  other  competent  writ- 
ten evidence,  is  absolutely  required.  So  if  an  assignee 
makes  the  affidavit,  it  should  appear  on  its  face  by  what 
right  he  moves  in  the  matter;  and  if  it  does  not  so 
appear,  and  the  order  is  obtained,  it  will  be  irregular. 
[Lindsay  v.  filler  man,  5  How.  Pr.  308).      Where  the 


524  PRACTICE. 

order  is  granted,  not  alone  upon  an  affidavit  but  also 
upon  the  judgment  roll,  and  the  required  facts  omitted 
in  the  affidavit  are  shown  by  the  judgment  roll,  the 
court  will  not  vacate  the  order.  {Jihujhamton  Trust 
Co.  V.  Grant,  65  App.  Div.  178) .  The  proof  of  the  facts 
necessarv  to  procure  an  order  for  the  examination  of  a 
judgment  debtor,  may  be  furnished  by  the  owner  of  the 
judgment,  or  his  attorney,  or  if  not  by  either  of  those 
parties,  then  by  an  agent  of  the  judgment  creditor,  who 
has  charge  of  the  collection  of  the  judgment.  {Conway 
V.  Hitchins,  9  Barb.  378).  The  affidavit  may  be  made 
by  any  person  who  knows  the  facts  which  are  to  be  sworn 
to  (whether  he  is  the  owner  of  the  judgment,  his  as- 
signee or  attorney),  or  by  any  person  who  has  the  right 
to  collect  the  judgment,  as  the  personal  representative 
of  the  judgment  creditor;  or  by  a  person  having  no 
interest  in  the  judgment;  but  when  made  by  such  a 
person,  he  must  show  that  he  is  acquainted  with  the 
facts,  and  how  he  is  so  acquainted,  and  that  the  affi- 
davit is  made  by  him  at  the  request  of  the  owner  of  the 
judgment  or  his  agent  or  attorney.  It  should  appear 
in  some  way  that  the  person  making  the  affidavit  is 
authorized  so  to  do;  and  that  he  does  not  merely  act  as 
an  intruder  into  other  peoples'  business;  and  if  he  is 
not  connected  with  the  judgment,  nor  requested  to  make 
the  affidavit  by  the  judgment  creditor,  or  one  having 
authority  to  act  for  him,  the  judge  gets  no  authority  or 
jurisdiction  to  issue  the  order;  and  if  an  order  is  made 
upon  such  an  unauthorized  affidavit,  it  will  be  set  aside 
on  motion ;  especially  in  a  case  where  neither  the  plain- 
tiff in  the  judgment,  nor  any  one  authorized  to  appear 
for  him,  appears  in  the  proceeding.  {Frederick  v. 
Decker,  18  How.  Pr.  96).  But  it  is  not  necessary  that 
the  evidence  connecting  the  person  making  the  affidavit 
with  the  owner  of  the  judgment,  shall  be  absolutely  con- 
clusive in  its  nature.  Slight  evidence  showing  that  the 
person  making  the  affidavit  is  authorized  to  do  so,  is 
sufficient.  It  has  been  held  that  a  mere  statement  that 
the  person  making  the  affidavit  is  the  agent  of  the  owner 
of  the  judgment,  however,  is  not  sufficient;  but  that  he 
should  state  in  his  affidavit  the  nature  of  his  agency 


SUPPLEMENTARY   PROCEEDINGS.  525 

(Hawes  v.  Barr,  7  Robt.  452) ;  but  the  rule  is  otherwise 
in  case  the  affidavit  is  made  by  the  attorney  of  the  judg- 
ment creditor.  {Miller  v.  Adams,  52  N.  Y.  409;  Kress 
V.  Morelicad,  8  N.  Y.  St.  Rep.  858).  In  case  the  pro- 
ceeding is  instituted  by  the  attorney  of  the  judgment 
creditor  to  enforce  payment  of  the  judgment  to  the  ex- 
tent of  his  lien  therein,  the  affidavit  should  show  the 
status  of  the  attorney,  in  regard  to  the  case.  (Russell 
V.  Somerville,  4  Law  Bull.  3). 

Where  the  proceeding  is  instituted  on  a  judgment  of  a 
justice's  court  which  has  been  docketed  in  the  county 
clerk's  office,  the  affidavit  should  be  entitled  in  the 
county  court;  but  an  irregularity  in  that  respect  does 
not  render  the  proceedings  void,  although  the  debtor 
may  move  to  set  aside  the  proceedings  on  the  ground  of 
the  irregularity.  {People  v.  Oliver,  66  Barb.  570).  It 
is  not  necessary  to  state  that  the  debtor  has  property. 
{Hatch  V.  Weyhurn,  8  How.  Pr.  163).  It  is  the  right 
of  the  judgment  creditor  to  examine  into  that  question. 
The  rule  is  the  same  as  in  a  judgment  creditor's  action, 
that  the  judgment  creditor  proceeds  at  his  own  peril  of 
costs;  and  if  he  discovers  that  the  debtor  has  no  prop- 
erty, he  is  liable  himself  for  the  costs  of  the  proceeding; 
and  the  judgTaent  debtor  is  not  injured,  and  cannot  ob- 
ject to  the  order,  or  to  the  appointment  of  a  receiver. 
(TVefth  v.  Overmann,  6  Abb.  Pr.  92). 

The  affidavit  should  truly  describe  the  judgment 
which  is  the  basis  of  the  proceeding.  {Kennedy  v. 
Weed,  10  Abb.  Pr.  62).  In  that  case  the  affidavit  de- 
scribed the  judgment  as  being  against  Ira  Weed  and 
Mary  Weed,  and  the  transcript  docketed  was  as  of  a 
judgment  against  Ira  W^eed  and  Mrs.  Weed;  and  it  was 
held  that  the  proceedings  must  be  dismissed,  as  the  ob- 
jection went  to  the  jurisdiction  of  the  judge  granting 
the  order,  and  could  not  be  cured  by  an  amendment,  nor 
waived  by  the  parties;  and  that  an  objection  on  that 
ground  was  available  at  any  stage  of  the  proceeding. 
(Id.).  The  affidavit  must  set  forth  that  the  judgment 
had  been  docketed;  merely  stating  that  the  judgment- 
roll  was  filed,  is  not  enough.  {Eaives  v.  Barr,  7  Robt. 
452).      In   case  the  judgment  is  of  a  local   court  of 


526  PRACTICE. 

limited  jurisdiction,  of  which  a  transcript  is  filed  in  the 
county  clerk's  oflflce,  it  has  been  held  that  the  afiidavit 
must  set  forth  tliat  the  transcript  was  filed  before  the 
execution  was  issued,  and  that  an  allegation  that  all 
these  acts  were  done  on  the  same  day  that  the  execution 
was  issued,  Avas  not  sufficient  {Mc Arthur  v,  Lanshurgh, 
1  Co.  Rep:  N.  S.  211)  ;  but  it  is  believed  that  this  is  not 
the  correct  rule ;  as  the  courts  will  not  take  the  trouble 
to  examine  into  fractious  of  a  day  to  determine  whether 
or  not  the  execution  was  issued  after  the  transcript  was 
filed;  nor  will  a  judge  pronounce  an  order  irregular, 
unless  it  is  clear  that  the  execution  was  issued  before 
the  transcript  was  filed. 

As  we  have  seen,  the  affidavit  need  not  state  that  the 
debtor  has  any  property ;  but  the  execution  must  be  one 
against  property,  and  the  affidavit  should  allege  that 
fact.  [People  v.  Hulhurt,  5  How.  Pr.  446).  In  cases, 
other  than  upon  judgments  of  a  justice's  court,  the 
affidavit  need  not  state  that  a  transcript  of  the  judg- 
ment has  been  filed  in  the  county  clerk's  office  of  the 
county  to  which  the  judgment  debtor  has  removed.  The 
debtor  cannot  by  changing  his  place  of  residence,  de- 
prive the  creditor  of  the  right  to  an  order  for  his  exam- 
ination, after  such  right  has  once  become  absolute. 
(Binghcnn  v.  Dishroiv,  37  Barb.  24).  Where,  however, 
an  order  was  granted  for  the  examination  of  a  judg- 
ment debtor,  upon  an  affidavit  which  did  not  state  that 
the  execution  was  issued  out  of  the  court  of  common 
pleas  after  a  transcript  was  filed ;  it  was  dismissed,  but 
without  costs.      (Sims  v.  Frier,  2  Law.  Bull.  97). 

Formerly  these  proceedings  could  be  had  on  a  judg- 
ment of  a  court  of  record,  although  the  amount  of  the 
judgment  was  less  than  twenty-five  dollars;  as  that 
limit  was  confined  to  judgments  recovered  in  a  justice's 
court,  of  which  a  transcript  had  been  filed  in  the  county 
clerk's  office;  but  by  the  code  of  civil  procedure,  the 
proceeding  cannot  be  had  in  any  case,  unless  the  judg- 
ment amounts  to  twenty-five  dollars.  It  should  appear 
in  the  affidavit  that  the  judgment  is  for  an  amount  not 
less  than  that  sum.  It  need  not  appear  that  it  is  for 
that  sum,  "  exclusive  of  costs ;"  for  as  we  have  seen  be- 


SUPPLEMENTARY    PROCEEDINGS.  527 

fore,  It  is  uo  longer  required  tliat  a  judgment  for  that 
sum,  in  order  to  entitle  the  judgment  creditor  to  an 
order  to  examine  the  debtor,  shall  be  exclusive  of  costs ; 
except  that  in  order  to  institute  supplementary  pro- 
ceedings upon  a  judgment  of  a  justice's  court,  a  tran- 
script of  which  has  been  filed  in  the  county  clerk's  office, 
it  must  appear  that  the  judgment  was  not  for  less  than 
twenty- five  dollars,  exclusive  of  costs;  for  by  section 
3043  of  the  code,  a  judgment  recovered  in  a  justice's 
court  in  order  to  be  a  lien  on  real  property,  must  be 
for  an  amount  not  less  than  twenty-five  dollars,  ex- 
clusive of  costs.  (Co.  Civ.  Proc.  §  3043).  This  excep- 
tion also  applies  to  the  municipal  court  of  Rochester. 
{Mason  v.  Hackett,  35  Hun,  238),  and  to  that  of  Sj^ra- 
cuse.  {Andrews  v.  Mastin,  22  Misc.  263).  See  sub- 
division 1  of  section  2,  su/pra. 

The  affidavit  need  not,  however,  allege  that  the  judge 
has  jurisdiction,  if  it  shows  the  facts  which  confer  juris- 
diction, and  that  the  judgment  was  correctly  given. 
{Conway  v.  Eitchins,  9  Barb.  378).  It  is  sufficient 
proof,  to  show  the  return  of  the  execution  unsatisfied, 
if  the  judgment  creditor  allege  that  fact  in  his  affidavit. 
( Id. ) .  The  copy  of  the  affidavit  required  to  be  served  on 
the  judgment  debtor  must  be  a  complete  copy.  It  should 
contain  the  signature  of  the  one  who  makes  it,  and  the 
officer  before  whom  it  is  taken ;  and  if  it  omits  that,  it  is 
defective.  {Natl.  Print  Co.  v.  Patterson,  4  Law  Bull. 
64).  But  where  the  copy  served  was  defective  in  such 
an  immaterial  way  that  the  judgment  debtor  could  not 
have  been  misled,  it  was  held  that  the  service  was  suffi- 
cient.     (Matter  of  Wyman,  76  App.  Div.  292). 

Whenever  application  is  made  ex  ixirte,  on  affidavit 
to  a  judge  or  court  for  an  order,  the  affidavit  shall  state 
whether  any  previous  application  has  been  made  for 
such  order,  and,  if  made,  to  what  court  or  judge,  and 
what  order  or  decision  was  made  thereon,  and  what 
new  facts,  if  any,  are  claimed  to  be  shown.  And  for  the 
omission  to  comply  with  this  rule,  any  order  made  on 
such  application,  may  be  revoked  or  set  aside.  This 
rule  shall  apply  to  proceedings  supplementary  to  exe- 
cution.     (Genl.  Rule,  25).     Bv  the  last  sentence  of  the 


528  PUACTICE. 

general  rule  just  cited,  it  is  specifically  made  to  apply 
to  proceedings  supplementary  to  an  execution.  So  the 
decision  in  the  case  of  Schanck  v.  Conover  (56  How.  Pr. 
437)  in  so  far  as  it  can  Ix^  modified  by  a  general  rule,  is 
changed;  so  that  the  affidavit  must  now  state  whether 
any  previous  application  has  been  made  for  the  order; 
and  if  so,  to  what  judge,  and  what  order  or  decision  was 
made  thereon.  The  court  in  the  case  of  Schanck  v. 
Conover  (supra)  distinctly  stated  that  the  rule  was  not 
intended  to  apply  to  orders  in  supplementary  proceed- 
ings, and  if  intended  to  apply  to  them,  such  intent  was 
inoperative.  (Id. ;  see  cases  cited  on  p.  438).  But  the 
rule  has  been  amended  since  that  decision,  as  quoted 
above.  While  the  omission  to  comply  with  this  rule 
is  a  mere  irregularity  and  not  a  jurisdictional  defect 
(see  Matter  of  National  Gramophone  Corp.,  82  xVpp. 
Div.  593),  still  the  rule  should  always  be  complied  with, 
as  a  failure  to  comply  with  it  may  be  ground  for  a  mo- 
tion to  vacate  or  set  aside  the  order.  The  rule  does 
not  compel  the  court  to  gi'ant  such  a  motion,  however. 
(Bean  v.  Tonnelle,  24  Hun,  353).  xV  mere  defect  in  the 
affidavit,  unless  it  goes  to  the  jurisdiction  of  the  court, 
may  be  corrected  by  amendment.  (First  Natl.  Bank  v. 
Wilson,  13  Hun,  232). 

As  we  have  seen,  Avhere  the  judgment  was  recovered 
against  the  plaintiff  in  the  original  action,  it  is  not 
necessary  in  the  affidavit  of  the  defendant,  upon  an 
application  hj  him  for  an  order  to  examine  the  plaintiff, 
to  allege  that  the  judgment  was  rendered  upon  his  ap- 
pearance or  personal  service  of  process  upon  him ;  as  by 
the  commencement  of  the  action,  the  plaintiff  volun- 
tarily submits  himself  to  the  jurisdiction  of  the  court, 
and  such  allegations  are  no  longer  necessary.  (Bean  v. 
Tonnelle,  supra).  The  affidavit  should  correctly  de- 
scribe the  person  against  whom  the  proceeding  is  taken. 
Where  the  judgment  is  against  an  assignee  for  the  bene- 
fit of  creditors,  merely  describing  him  "  as  assignee  "  is 
not  sufficient  to  comply  with  the  statute;  the  affidavit 
should  show  that  the  execution  was  issued  against  him, 
as  such  assignee  of  the  i^roperty  of  the  defendant  for 


SUPPLEMENTARY    PROCEEDINGS.  529 

the  benefit  of  creditors,  and  that  the  sheriff  was  re- 
quired by  such  execution  to  satisfy  the  judgment  out 
of  the  property  held  by  such  assignee  in  trust,  which  is 
liable  for  the  payment  of  the  judgment;  and  that  such 
execution  has  been  returned  unsatisfied.  (Felt  v.  Dorr, 
29  Hun,  14).  Of  course,  the  residence  of  the  judgment 
debtor  must  be  shown  by  the  affidavit,  in  order  to  show 
that  section  2458  has  been  complied  with.  {Matter  of 
Gagnon,  32  App.  Div.  22). 

Where  the  application  is  made  before  the  return  of 
execution,  the  affidavit  must  show  that  the  debtor  has 
property  which  he  unjustly  refuses  to  apply  towards  the 
satisfaction  of  the  judgment.  (Co.  Civ.  Proc.  §  2436). 
The  proof  must  show  a  demand  of  the  application  of 
the  property  to  the  payment  of  the  judgment.  {Leavy 
V.  Beacliam,  64  Hun,  62 ;  Matter  of  First  National  Bank, 
52  App.  Div.  601,  citing  the  first  edition  of  this  work ) . 
An  affidavit  which  follows  the  words  of  the  statute, 
gives  the  court  jurisdiction,  however,  although  it  does 
not  state  the  facts,  and  the  omitted  facts  may  be  sup- 
plied by  affidavits  in  opposition  to  a  motion  to  vacate. 
(First '^ Natl  Bank  v.  Wilson,  13  Hun,  232).  If  the 
property  can  be  reached  with  due  diligence  by  execu- 
tion, the  order  should  not  be  granted.  {Sackett  v. 
Newton,  10  How.  Pr.  560).  If  the  property  is  subject 
to  levy  under  an  execution,  the  sheriff  should  proceed  to 
make  a  levy  upon  it,  in  the  ordinary  way ;  and  an  order 
to  examine  the  judgment  debtor  will  not  ordinarily  be 
granted,  unless  it  is  clear  that  the  debtor  is  acting  un- 
justly in  refusing  to  apply  such  property  towards  the 
payment  of  the  judgment;  but  if  the  property  is  not  of 
such  a  nature,  that  it  is  subject  to  levy,  the  order  will  be 
granted.      ( Id. ) . 

Where  it  is  sought  to  examine  third  persons  or  cor- 
porations, having  in  their  possession  personal  property 
of  the  judgment  debtor,  or  being  indebted  to  him,  the 
affidavit  should  show,  to  the  satisfaction  of  the  judge, 
that  the  execution  against  property  of  such  judgment 
debtor  has  been  issued  as  prescribed  in  section  2458  of 
the  code,  and  that  it  has  been  returned  wholly  or  partly 
34 


530  PRACTICE. 

unsatisfied;  or,  if  the  application  is  made  before  the 
return  of  execution,  it  should  show  the  same  facts,  and 
that  it  has  not  been  returned;  and  also  that  such  per- 
son or  corporation  has  personal  property  of  the  judg- 
ment debtor  exceeding  ten  dollars  in  value,  or  is  in- 
debted to  him  in  a  sum  exceeding  ten  dollars.  (Co.  Civ. 
Proc.  §  2441).  An  affidavit  that  such  person  or  corpo- 
ration has  personal  property  of  the  judgment  debtor  in 
his  or  its  possession,  or  is  indebted  to  him  in  a  sum 
exceeding  ten  dollars,  "  as  the  deponent  is  advised  and 
believes,"  is  sufficient  to  confer  jurisdiction  to  grant 
the  order,  without  positive  proof  of  those  facts  being 
furnished.  {Miller  v.  Adams,  52  N.  Y.  409).  In  the 
case  last  cited  the  validity  of  the  order  was  attacked 
collaterally  in  an  action  for  false  imprisonment.  But 
if  the  affidavit  is  made  solely  on  information  and  belief 
and  does  not  state  the  sources  of  such  information,  the 
order  granted  thereon  will  be  vacated  on  motion.  (Mat- 
ter of  Leslie,  19  Misc.  667).  The  positive  averment  con- 
tained in  an  affidavit  of  the  managing  clerk  of  the  judg- 
ment creditor's  attorney  that  a  third  party  has  personal 
property  of  the  judgment  debtor  exceeding  ten  dollars 
in  value,  is  sufficient  to  support  the  order.  {Bruen  v. 
Nickels,  30  App.  Div.  396).  The  order  must,  however, 
be  obeyed  until  vacated.  (Matter  of  Parrlsh,  28  App. 
Div.  22).  But  it  was  held  in  People  v.  Jones  (1  Abb. 
N.  C.  172)  that  proceedings  to  punish  a  third  party  for 
contempt  for  disobedience  of  the  order,  should  be  dis- 
missed, where  the  affidavit  was  upon  information  and 
belief  and  did  not  state  the  source  of  information.  The 
examination  of  a  third  person  or  a  corporation,  in  the 
best  light  in  which  it  can  be  viewed,  is  a  hardship  to 
such  third  person  or  corporation ;  and  to  permit  a  cred- 
itor merely  upon  information  and  belief,  without  giving 
the  sources  of  such  belief  or  information,  to  subject 
third  persons  or  the  officers  of  a  corporation  to  the  in- 
conveniences of  attending  before  a  referee  to  be  ex- 
amined, or  to  the  pains  and  penalties  of  proceedings  for 
contempt,  is  unjust  and  will  not  be  allowed.  (People 
V.  Jones,  supra).      The  affidavit  in  such  cases  should 


SUPPLEMENTARY   PROCEEDINGS.  531 

not  be  in  the  alternative,  that  is,  either  that  the  person 
or  corporation  has  property  of  the  judgment  debtor,  or 
is  indebted  to  him;  it  should  specify  one  or  the  other 
fact  as  the  case  may  be.  {Lee  v.  Heirherger,  1  Co.  Rep. 
38;  Smith  v.  Cutter,  64  App.  Div.  412).  It  is  a  juris- 
dictional defect  and  not  a  mere  irregularity,  where  the 
affidavit  states  that  the  execution  was  issued  to  the 
county  "  where  the  judgment  debtor  resides  or  has  a 
place  for  the  regular  transaction  of  business  in  person. 
(Zelie  V.  Vi'oman,  22  Misc.  486).  It  is  not  necessary 
to  allege  that  the  execution  has  been  returned  unsatis- 
fied; as  the  proceeding  against  a  third  person  or  a  cor- 
poration may  be  had  before  the  return  of  the  execution, 
as  well  as  after.  {Seeley  v.  Garrison,  10  Abb.  Pr.  460). 
Where  application  is  made  to  examine  a  person 
against  whom  a  tax  exceeding  ten  dollars  has  been 
levied,  under  section  259  of  the  Tax  Law  (formerly  L. 
1867,  chap.  361),  the  affidavit  need  only  allege  the  facts 
stated  in  said  section ;  it  need  not  allege  facts  showing 
the  jurisdiction  of  the  assessors.  {Matter  of  Gonklin, 
36  Hun,  588). 

Subdivision    2. — Affidavit   to    Obtain    Warrant    of 

Arrest. 

The  affidavit  to  obtain  a  warrant  of  arrest  must  con- 
tain all  the  facts  necessary  to  show  jurisdiction  of  the 
proceeding;  and  that  the  applicant  is  entitled  to  an 
order  in  the  proceedings,  the  same  as  an  affidavit  to 
obtain  an  order  for  the  examination  of  the  judgment 
debtor.  Those  facts  have  been  specified  in  the  preced- 
ing subdivision. 

In  addition  to  the  requirements  of  an  affidavit  to  ob- 
tain an  order,  the  affidavit  to  obtain  a  warrant  of  arrest 
must  contain  facts  which  show  to  the  satisfaction  of  the 
judge  that  there  is  danger  that  the  judgment  debtor 
will  leave  the  state,  or  conceal  himself,  and  that  there  is 
reason  to  believe  that  he  has  property  which  he  un- 
justly refuses  to  apply  to  the  payment  of  the  judgment. 
(Co.  Civ.  Proc.  §  2437).  In  this  proceeding,  as  in  all 
others,  the  processes  of  the  court  cannot  have  any  extra- 


532  PKACTICE. 

territorial  effect;  so  where  the  affidavit  showed  that 
the  judj^ent  debtor  was  in  another  state,  but  that  there 
was  danger  that  he  would  conceal  himself  therein,  the 
case  is  not  within  the  jurisdiction  of  the  judge,  and  does 
not  meet  the  requirements  of  that  section.  Nor  can  it 
in  such  case  be  granted  on  the  ground  that  the  debtor 
is  about  to  leave  the  state,  for  he  already  is  beyond  the 
jurisdiction  of  the  court.  (Rohshand  v.  Waring,  1  Abb. 
N.  C.  311). 

It  is  not  necessary  that  the  affidavit  show  positively 
that  the  judgment  debtor  has  property.  If  the  creditor 
alleges  that  he  believes  that  he  has  property,  giving  the 
sources  of  his  information,  and  the  reasons  for  his  be- 
lief, to  the  satisfaction  of  the  judge  before  whom  the 
application  is  made,  the  warrant  may  be  issued  {Netzel 
V.  Midford,  59  How^  Pr.  452)  ;  but  it  is  not  sufficient 
ground  for  such  belief,  that  the  judgment  creditor  infers 
that  the  debtor  has  property,  because  he  is  extravagant 
and  expensive  in  his  habits,  and  lives  at  the  best  hotels. 
(Id.). 

In  these  cases,  where  the  creditor  may  make  his  own 
affidavit  for  the  purpose  of  procuring  a  warrant,  it  is 
not  too  much  to  require  that  he  should  make  out  a  plain 
case.  {People  ex  rel.  Yan  Yalkenhurg  v.  Recorder  of 
Albany,  6  Hill,  429).  The  creditor's  mere  belief 
is  neither  a  fact  nor  a  circumstance  upon  which  the 
judge  can  exercise  his  judgment;  and  the  facts,  or  the 
sources  of  such  belief,  should  be  shown,  to  enable  the 
judge  to  determine  whether  a  case  exists  which  justifies 
the  issuance  of  a  warrant  of  arrest.  {Smith  v.  Luce, 
14  Wend.  237). 

The  evidence  necessary  for  a  warrant  of  arrest  may  be 
furnished  by  the  same  persons  as  in  cases  of  an  order  for 
the  examination  of  the  judgment  debtor;  the  right  given 
under  this  provision  of  the  code,  is  similar  to  the  former 
writ  of  ne  exeat  which  was  granted  when  there  was 
danger  that  the  defendant  would  leave  the  state.  Under 
the  practice  in  reference  to  ne  exeat  the  wTit  could  only 
be  granted  upon  positive  proof  that  the  defendant  in- 
tended to  leave  the  state,  or  made  threats  and  declara- 


SUPPLEMENTARY   PROCEEDINGS.  533 

tions  that  he  intended  to  do  so,  or  by  other  evidence 
which  amounted  to  proof  of  an  intention  to  leave;  but 
under  this  section  of  the  code,  it  is  enough,  if  the  proof 
is  sufficient  to  satisfy  the  judge  that  there  is  danger  that 
the  judgment  debtor  will  leave  the  state,  or  conceal  him- 
self. Still  the  danger  should  be  real,  and  not  merely 
imagined,  or  even  probable.  (Riddle  and  Bullard  on 
Sup.  Pro.  p.  119 ) .  The  allegation  should  be  either  that 
there  is  danger  that  the  defendant  will  leave  the  state, 
or  else  that  there  is  danger  that  he  will  conceal  himself ; 
it  should  not  be  in  the  alternative ;  it  should  allege  one 
or  the  other,  as  the  case  may  be.  {Lee  v.  Heirherger, 
1  Co.  Rep.  38). 

Where  the  facts  specified  in  section  2437  are  made  to 
appear,  as  therein  stated,  at  any  time  after  the  making 
of  an  order,  requiring  the  judgment  debtor  to  attend 
and  be  examined,  and  before  the  close  of  his  examina- 
tion, the  judge  may  issue  a  warrant,  as  therein  pre- 
scribed ;  and,  if  necessary,  may  direct  the  adjournment, 
or,  if  the  return  day  of  the  order  has  elapsed,  the  con- 
tinuance of  the  proceedings  under  the  order,  until  after 
the  return  of  the  warrant,  and  his  decision  thereupon. 
(Co.  Civ.  Proc.  §2438). 

The  effect  of  this  section  is  merely  to  continue  the 
power  of  the  judge  to  issue  a  warrant  through  the  entire 
proceeding  from  the  time  of  the  granting  an  order  for 
the  examination  of  the  judgment  debtor,  until  such  ex- 
amination is  closed.  It  also  gives  the  judge  the  power 
to  continue  the  proceedings  already  begun  under  an 
order  for  the  examination  of  a  judgment  debtor,  until 
the  return  of  the  warrant,  and  his  decision  thereupon. 
Before  the  adoption  of  this  section  of  the  code,  there 
was  no  provision  giving  such  power. 

A  copy  of  the  affidavit  upon  which  the  warrant  of 
arrest  is  issued  must,  in  all  cases,  be  served  upon  the 
judgment  debtor,  at  the  time  such  warrant  is  executed. 
(Co.  Civ.  Proc.  §  2453). 


534  PRACTICE. 

Sec.    5.    Warrant   of  arrest. 

Subdivision  1. — In  What  Cases  Issued. 

As  we  Lave  seen  in  the  preceding  section,  the  warrant 
of  arrest  furnishes  substantially  the  same  remedy  in 
these  proceedings,  as  was  formerly  furnished  by  a  writ 
of  7ie  exeat,  with  the  additional  feature,  that  it  may  be 
issued  not  only  in  cases  where  there  is  danger  that  the 
judgment  debtor  will  leave  the  state,  but  also  where  he 
unjustly  conceals  himself  within  the  state  for  the  pur- 
pose of  avoiding  the  payment  of  the  judgment,  or  to 
prevent  a  levy  from  being  made  upon  his  property.  The 
same  judge  who  may  grant  an  order  to  examine  the 
judgment  debtor,  may  issue  a  w^arrant,  in  a  proper  case, 
for  his  arrest.  The  warrant  must  recite  the  facts  which 
entitle  the  judgment  creditor  to  such  warrant ;  and  must 
contain  a  direction  requiring  the  sheriff  of  any  county 
where  the  judgment  debtor  may  be  found,  to  arrest  him 
and  bring  him  before  the  judge  who  issued  the  warrant, 
or  before  another  judge,  specified  in  the  warrant,  if  the 
case  is  one  where  the  warrant  must  be  made  returnable 
to  another  judge;  as  in  case  it  is  made  by  a  justice  of  the 
supreme  court,  who  does  not  reside  within  the  judicial 
district  embracing  the  county  to  which  the  execution 
was  issued,  as  provided  in  section  2434  of  the  code. 
(Co.  Civ.  Proc.  §2437). 

A  warrant  for  the  arrest  of  the  judgment  debtor,  may 
be  issued  in  a  proper  case,  instead  of  an  order  to  ex- 
amine the  debtor  (Co.  Civ.  Proc.  §  2437) ;  and  it  may  be 
issued  not  only  at  the  time  of  the  application  for  the 
order,  but  at  any  stage  of  the  proceeding  from  the  mak- 
ing of  the  order  to  the  time  the  examination  of  the  judg- 
ment debtor  is  closed.      (Co.  Civ.  Proc.  §  2438). 

The  sheriff,  when  he  arrests  a  judgment  debtor  by 
virtue  of  a  w  arrant,  issued  as  prescribed  in  this  proceed- 
ing, must  deliver  to  him  a  copy  of  the  warrant,  and  of 
the  affidavit  upon  Avhich  it  was  granted.  (Co.  Civ.  Proc. 
§2453). 

It  is  not  necessary  in  these  proceedings  to  give  secur- 
ity upon  the  issuing  of  a  warrant  for  the  arrest  of  the 
judgment  debtor.      The  code  does  not  require  it;  and 


SUPPLEMENTARY    PROCEEDINGS.  535 

as  the  warrant  is  issued  to  prevent  a  failure  of  justice, 
the  plaintiff  is  not  required  to  go  to  the  trouble  of  ob- 
taining security. 

The  issuing  of  the  warrant  is  always  in  the  discretion 
of  the  judge  to  whom  the  application  is  made.  It  is  in 
the  name  of  the  people  of  the  state.  The  facts  required 
to  be  recited  in  the  warrant,  are  the  recovery  of  the 
judgment,  the  issue  of  execution,  and  that  it  appears  by 
affidavit  to  the  satisfaction  of  the  judge,  that  there  is 
danger  that  the  judgment  debtor  will  leave  the  state  (or 
conceal  himself),  and  that  there  is  reason  to  believe  that 
he  has  property  which  he  unjustly  refuses  to  apply  to 
the  payment  of  the  judgment.  (Co.  Civ.  Proc.  §  2437). 
Where  the  warrant  is  issued  during  the  continuance  of 
the  proceeding,  its  object  is  to  bring  the  judgment  debtor 
before  the  judge,  to  give  the  judge  the  custody  of  his 
person  during  the  examination.  The  warrant  may 
issue,  upon  proper  proofs,  against  a  non-resident  judg- 
ment debtor.  {Denning  v.  Schieffelin,  26  N.  Y.  St. 
Rep.  96). 

Subdivision  2. — How  Vacated  or  Modified. 

A  warrant,  issued  as  prescribed  in  sections  2437  and 
2438,  may  be  vacated  or  modified,  as  prescribed  in  sec- 
tion 2433  of  the  code,  with  respect  to  an  order.  (Co. 
Civ.  Proc.  §2439). 

The  manner  of  vacating  or  modifying  a  warrant,  be- 
ing the  same  as  in  case  of  vacating  or  modifying  an 
order  for  the  examination  of  a  judgment  debtor,  it  will 
be  treated  of  in  that  place.  See  section  6,  subdivision 
3  of  this  article,  infra. 

The  vacating  of  an  order  for  the  debtor's  examina- 
tion does  not  terminate  proceedings  under  a  warrant 
obtained  after  the  order,  as  the  two  proceedings  are 
independent.      {Frost  v.  Craig,  18  Civ.  Proc.  Rep.  198). 

Subdivision  3. — Undertaking  on  Arrest. 

Where  a  judgment  debtor  has  been  arrested  and 
brought  before  a  judge,  by  virtue  of  a  warrant,  issued 
as  prescribed  in  this  proceeding;  and  it  appears  to  the 


536  PRACTICE. 

satisfaction  of  the  judge,  from  his  examination,  or  other 
proof,  that  there  is  danger  that  he  will  leave  the  state, 
or  conceal  himself,  and  that  he  has  property,  which  he 
has  unjustly  refused  to  apply  to  the  satisfaction  of  the 
judgment;  the  judge  may  make  an  order,  requiring  him 
to  give  an  undertaking,  with  one  or  more  sureties,  in  a 
sum  fixed  and  within  a  time  specified  in  the  order,  to  the 
effect,  that  he  will,  from  time  to  time,  as  the  judge 
directs,  attend  before  the  judge,  or  before  a  referee,  ap- 
pointed or  to  be  appointed  in  the  proceedings ;  and  that 
he  will  not,  until  discharged  from  arrest  by  virtue  of  the 
warrant,  dispose  of  any  of  his  property,  which  is  not 
exempted  from  seizure  by  section  2463  of  the  code.  If 
he  fails  to  comply  with  the  order,  the  judge  must  forth- 
with, by  warrant,  commit  him  to  prison,  there  to  remain 
until  the  close  of  the  examination,  or  the  giving  of  the 
required  undertaking;  except  that  the  judge  may  direct 
the  sheriff  to  produce  him,  from  time  to  time,  as  re- 
quired in  the  course  of  the  proceedings.  ( Co.  Civ.  Proc. 
§2440). 

Sec.    6.    The  order. 

Subdivision  1. — What  to  Contain. 

The  order  is  a  judge's  order,  and  may  be  without 
notice.  {Hulsaver  v.  Wiles,  11  How.  Pr.  446).  It  is 
not  a  part  of  the  action,  but  is  an  order  in  a  special 
proceeding.  It  should  not  be  entitled  in  the  action 
(Millikeu  V.  Thomson,  54  N.  Y.  Super.  Ct.  Rep.  393)  ; 
it  should  be  entitled  as  in  any  special  proceeding  before 
a  judge  out  of  court.  {Davis  v.  Turner,  4  How.  Pr. 
190). 

The  order  should  recite  the  requisite  proof  entitling 
the  judgment  creditor  to  an  examination  of  the  judg- 
ment debtor,  although  that  is  not  absolutely  necessary 
{People  ex  rel.  Mace  v.  Oliver,  66  Barb.  570)  ;  and  an 
omission  to  recite  such  facts  does  not  impair  the  validity 
of  the  order.  (Id.).  The  better  practice,  however,  is 
to  recite  the  facts  giving  jurisdiction  to  the  judge  to 
make  the  order;  and  where  they  are  so  recited,  they 
should  be  correctly  given.     If  they  are  not  recited,  and 


SUPPLEMENTARY   PROCEEDINGS.  537 

it  appears  on  the  face  of  the  order  that  the  court  has 
not  jurisdiction,  the  proceeding  will  be  dismissed,  if  the 
objection  is  taken  in  time.      {Hatch  v.  Wephurn,  8  How. 
Pr.  163).     When  the  order  contains  the  proper  recitals, 
they  are,  when  the  order  is  attacked  collaterally,  con- 
clusive evidence  of  the  regularity  of  the  proceedings, 
and  presumptive  evidence  of  the  existence  of  the  juris- 
dictional facts.       {Lisner  v.  Toplitz,  86  App.  Div.  1). 
Where  the  order  is  sought  to  be  obtained  on  a  judg- 
ment of  a  justice's  court,  a  transcript  of  which  has  been 
filed  in  the  county  clerk's  oflflce,  the  affidavit  and  order 
should  not  be  entitled  in  justice's  court;  but  if  they  are 
so  entitled,  it  is  a  mere  irregularity.      If  the  debtor 
maJies  objection  on  that  ground,  he  should  promptly 
move  to  set  the  order  aside;  and  he  will  not  be  per- 
mitted to  lie  by  and  take  advantage  of  such  irregularity 
for  the  first  time  on  an  appeal  from  such  order.     {Peo- 
ple ex  rel.  Mace  v.  Oliver,  supra).    Where  the  order  is 
based  on  a  judgment  of  an  inferior  court,  of  which  a 
transcript  has  been  filed  in  the  office  of  the  county  clerk, 
the  order  should  recite  all  the  facts  necessary  to  give 
the  judge  jurisdiction  of  the  proceeding;  and  if  such 
facts  are  only  stated  in  the  affidavit,  the  order  is  irre- 
gular.    {Dai/  V.  Brosnan,  6  Abb.  N.  .C.  312).      Such  an 
order  must  show  that  the  transcript  of  the  judgment 
was  filed  and  docketed  in  the  county  clerk's  office,  and 
the  time  when  it  was  so  filed  and  docketed,  and  the  issue 
of  an  execution  thereon  from  a  court  of  record,  as  re- 
quired by  the  code.      (Id.). 

The  order  must  require  the  judgment  debtor,  or  per- 
son to  whom  it  is  directed,  to  appear  at  a  place  in  the 
county  to  which  the  execution  was  issued,  and  of  which 
he  is  a  resident,  or  in  which  he  has  a  place  for  the  regu- 
lar transaction  of  business  in  person,  if  he  is  a  resident 
of  the  state.  (Co.  Civ.  Proc.  §  2459).  If  the  judgment 
debtor  is  not  a  resident  of  the  state,  but  has  a  place 
within  the  state  for  the  regular  transaction  of  his  busi- 
ness in  person,  then  the  order  should  direct  him  to  ap- 
pear at  a  place  in  the  county  where  such  place  of  busi- 
ness is  situated ;  but  if  he  has  no  place  of  business  in  the 
state,  then  the  order  should  direct  him  to  appear  at  a 


53S  PRACTICE. 

place  in  the  couoty  where  the  judgment-ruU  is  filed. 
(Antaui/  V.  Davids  9  Hun,  296).  The  court  say,  in  the 
case  last  cited,  that  the  intention  of  the  le.e^islature 
seems  clearly-  to  have  been  to  allow  the  examination  of 
the  judgment  debtor  in  all  cases,  whether  a  resident  or 
a  non-resident,  to  be  had  in  the  county  in  which  he  has 
a  place  of  business;  and  that  it  cannot  be  oppressive  to 
ask  the  debtor  to  appear  in  his  business  locality,  and 
make  the  statements  contemplated  by  these  proceed- 
ings; and  when  the  debtor  does  not  reside  in  the  state 
and  has  no  place  of  business  here,  then  that  the  proceed- 
ing must  be  conducted  in  the  county  where  the  judg- 
ment-roll is  filed;  thus  protecting  the  judgment  debtor 
from  the  liability  of  being  transported  from  one  part 
of  the  state  to  another,  to  satisfy  the  inclination  or 
whim  of  the  creditor.  Where,  however,  a  judgment 
debtor  has  more  than  one  place  of  business,  the  order 
need  not  be  made  returnable  in  the  county  where  his 
principal  place  of  business  is  located.  {McEivan  v. 
Burgess,  15  Abb.  Pr.  473).  The  order  should  require 
the  debtor  or  person  against  whom  it  is  directed,  to 
appear  before  the  judge  making  the  order,  or  a  referee 
appointed  either  by  the  order  itself,  or  by  a  separate 
order.  {Hiilsaver  \.  ^yiles,  11  How.  Pr.  446).  Where 
the  order  is  made  by  a  justice  of  the  supreme  court  who 
does  not  reside  within  the  judicial  district  embracing 
the  county  to  which  the  execution  was  issued,  it  must  be 
made  returnable  to  a  justice  of  the  supreme  court  resid- 
ing in  that  district,  or  to  a  county  judge  or  special 
county  judge,  or  special  surrogate,  of  that  or  an  adjoin- 
ing county.  (Co.  Civ.  Proc.  §  2434).  In  such  a  case, 
if  the  order  fails  to  name  such  a  justice  or  judge  of  the 
district  where  the  debtor  resides,  it  is  irregular;  and 
such  irregularity  may  be  taken  advantage  of,  if 
promptly  raised,  {^liults  v.  Andreios,  54  How.  Pr. 
376).  Where  the  order  required  the  judgment  debtor 
to  appear  before  the  justice  granting  it,  ''  or  some 
other  justice  of  this  court  at  chambers,"  specifying  the 
time  and  place  of  appearance,  it  is  not  void  or  irregular 
on  account  of  its  alternative  form ;  as  the  words  "  or 
some  other  justice  "  are  simply  surplusage.     {Dresser  Y. 


SUPPLEMENTARY    PROCEEDINGS.  539 

Van  Pelt,  15  How.  Pr.  19;  Bank  for  Savings  v.  Hope,  8 
Daly,  316).  Where  an  order  was  made  by  a  justice  of 
the  supreme  court  residing  in  one  judicial  district,  re- 
quiring a  non-resident  judgment  debtor,  who  had  a  place 
of  business  in  a  county  embraced  in  another  judicial  dis- 
trict, to  appear  before  a  referee  in  such  latter  district,  it 
was  held  to  be  irregular,  and  was  set  aside,  because  it 
did  not  provide  that  the  subsequent  proceedings  should 
be  had  before  a  justice  of  the  supreme  court  of  the  dis- 
trict to  w^hich  the  order  was  made  returnable,  in  com- 
pliance with  section  2434  of  the  code.  {Broivning  v. 
Hayes,  41  Hun,  382).  An  order  requiring  the  debtor  to 
appear  before  a  "  judge  of  the  county  court "  instead  of 
before  a  "  county  judge  "  is  not  irregular,  as  it  is  not  a 
material  variance  from  the  requirements  of  the  code. 
{Kress  v.  Moreliead,  8  N.  Y.  St.  Rep.  858). 

If  the  order  states  no  place  where  the  judgment  debtor 
is  required  to  appear,  it  is  fatally  defective ;  although  a 
notice  is  subsequently  given  to  the  judgment  debtor  of  a 
place  for  the  hearing.  {Keltij  v.  Yerhy,  31  How.  Pr.  95) . 
The  order  must  specify  both  the  time  and  place  where 
the  judgment  debtor,  or  person  to  be  examined,  shall 
appear.  (Co.  Civ.  Proc.  §§  2435,  2436,  2441).  But  in 
case  the  judge  who  grants  the  order,  appoints  in  said 
order,  or  by  a  separate  order,  a  referee  before  whom  the 
examination  shall  be  had,  the  order  may  contain  a  di- 
rection that  the  person  to  be  examined,  appear  at  such 
time  and  place  as  may  be  duly  designated  by  the  referee 
so  appointed.    {Redmond  v.  Goldsmith,  2  Law  Bull.  19). 

An  order  returnable  on  Sunday  is  a  nullity;  and  the 
changing  of  the  date  after  the  service  of  the  order,  does 
not  remedy  the  defect;  and  it  is  not  contempt  on  the 
part  of  the  judgment  debtor,  not  to  appear  either  on  the 
Sunday,  or  the  day  to  which  by  notice  the  time  was 
changed.  {Arctic  F.  Ins.  Co.  v.  Hicks,  7  Abb.  Pr.  204). 
By  analogy  of  reasoning,  an  order  returnable  on  a  legal 
holiday  or  on  election  day  is  irregular,  and  may  be  dis- 
regarded. 

In  a  case  where  the  proof  will  warrant  it,  the  order 
may  combine  a  direction  for  the  appearance  and  ex- 
amination of  a  third  person  or  corporation,  with  the 


540  PRACTICE. 

examination  of  the  judgment  debtor,  and  this  either  in 
a  proceeding  brought  before  or  after  the  return  of  an 
execution.  (Co.  Civ.  Proc.  §  2432;  Hulsaver  v.  Wiles, 
11  How.  Pr.  446). 

An  order,  requiring  a  person  to  attend  and  be  ex- 
amined, made  pursuant  to  any  provision  of  this  article 
(article  I  of  title  12  of  chapter  XVII  of  the  code),  must 
require  him  so  to  attend  and  be  examined,  either  before 
the  judge  to  whom  the  order  is  returnable,  or  before  a 
referee  designated  therein.  (Co.  Civ.  Proc.  §  2442). 
As  to  the  proceedings  before  a  referee,  see  article  II  of 
this  chapter. 

It  is  not  necessary  in  this  place  to  go  into  the  subject 
of  the  judge  who  may  grant  the  order,  as  that  has  been 
fully  discussed  in  section  3  of  this  article,  where  the 
judges  are  given  before  whom  the  proceeding  may  be 
had. 

Subdivision  2. — Service  op  the  Order. 

An  order  requiring  a  person  to  attend  and  be  ex- 
amined, must  be  served  as  follows : 

1.  The  original  order,  under  the  hand  of  the  judge 
making  it,  must  be  exhibited  to  the  person  to  be  served. 

2.  A  copy  thereof,  and  of  the  affidavit  upon  which  it 
was  made,  must  be  delivered  to  him. 

Service  upon  a  corporation  is  sufficient  if  made  upon 
an  officer,  to  whom  a  copy  of  a  summons  must  be  de- 
livered, where  a  summons  is  personally  served  upon  the 
corporation ;  unless  the  officer  is  specially  designated  by 
the  judge,  as  prescribed  in  section  2444  of  the  code. 
(Co.  Civ.  Proc.  §  2452). 

The  order  must  be  served  before  the  day  on  which  it  is 
made  returnable,  or  no  jurisdiction  is  acquired  {Hender- 
son v.  Stone,  40  How.  Pr.  333)  ;  the  subsequent  appear- 
ance of  the  judgment  debtor  for  the  purpose  of  raising 
that  objection,  does  not  confer  jurisdiction.  (Id.). 
Where  the  order  was  not  served  until  after  the  return 
day,  and  the  judge  has  not  acquired  jurisdiction  by  rea- 
son thereof,  the  objection  may  be  raised  at  any  time; 
but  where  the  judgment  debtor  appeared  without  rais- 


SUPPLEMENTARY   PROCEEDINGS.  541 

ing  an  objection,  which  might  have  been  raised,  al- 
though the  order  was  not  served  as  directed  in  the  sec- 
tion of  the  code  above  cited,  he  waives  all  irregularity 
in  the  service  of  the  order.  ( Utica  City  Bank  v.  Buell, 
9  Abb.  Pr.  385).  The  sheriff's  certificate  of  service  is 
not  conclusive  proof  of  the  service  of  the  order  in  this 
proceeding.  The  order  may  be  served  by  any  one  who 
might  serve  a  summons  in  an  action  brought  in  a  court 
of  record.  (See  vol.  I,  p.  197).  A  party  upon  whom 
an  order  is  served  in  an  improper  manner,  if  he  desires 
to  take  advantage  of  such  objection,  should  not  appear 
generally;  but  should  make  a  qualified  appearance  for 
the  purpose  of  raising  the  objection.  He  does  not  lose 
his  right  to  object  by  such  qualified  appearance.  Where, 
however,  the  judgment  debtor  appeared  and  asked  an 
adjournment  of  the  proceeding,  without  raising  his  ob- 
jection, he  is  bound  to  appear  upon  such  adjourned  day; 
although  he  might  have  had  the  proceeding  dismissed, 
if  he  had  taken  his  objection  in  time.  ( Id. ) .  Formerly 
it  was  not  necessary  that  the  affidavit  on  which  the 
order  is  granted  should  be  served  at  the  time  of  the  ser- 
vice of  the  order  {Green  v.  Bullard,  8  How.  Pr.  313; 
JJtica  City  Bank  v.  Buell,  17  How.  Pr.  498) ;  but  by  sec- 
tion 2452,  it  is  required  that  the  affidavit  shall  be  served 
with  the  order;  so  that  the  cases  which  held  to  the  con- 
trary are  overruled.  An  inadvertent  variance,  by  which 
the  debtor  could  not  be  misled,  between  the  original 
affidavit  and  the  copy  served  is  not  fatal  to  the  validity 
of  the  service.  {Matter  of  Wyman,  76  App.  Div.  292). 
An  irregularity  as  to  the  mode  of  serving  the  order  is 
waived  by  the  appearance  of  the  judgment  debtor  and 
his  submitting  to  an  examination  without  objection. 
{Billings  v.  Carver,  54  Barb.  40).  A  failure  to  show 
the  original  order  to  the  party  served,  is  an  irregularity ; 
and  is  waived  by  his  appearance  without  making  that 
objection.  {Neivell  v.  Cutler,  19  Hun,  74;  overruled  on 
another  point,  Hancock  v.  Sears,  93  N.  Y.  79).  An 
order  made  by  a  justice  of  the  supreme  court  may  be 
served  in  any  part  of  the  state.  {Bingham  v.  Dishroic, 
37  Barb.  24). 


5j:2  practice. 

Subdivision  3. — Effect  of  the  Order. 

By  the  commencement  of  pi'oceedin<^s  supplementary 
to  an  execution  against  the  property  of  the  judgment 
debtor,  the  plaintiff  ac(iuires  an  inchoate  lien  upon  the 
property  of  such  debtor,  or  upon  any  interest  he  has  in 
property;  but  in  order  to  perfect  such  lien  it  is  neces- 
sary that  the  plaintiff  obtain  a  final  order  directing  the 
property-  of  the  judgment  debtor  to  be  applied  in  satis- 
faction of  his  judgment;  and  also  the  appointment  of  a 
receiver  to  carry  that  order  into  effect.  Such  a  final 
order  has  the  effect  of  divesting  the  debtor  of  his  title 
or  interest  in  the  property,  and  vesting  it  in  the  receiver 
for  the  benefit  of  the  plaintiff.  {Porter  v.  Williams, 
9  N.  Y.  142;  Edmonston  v.  McLoud,  16  N.  Y.  543).  By 
the  service  of  the  order,  and  the  restraining  of  the 
debtor  by  the  injunction,  the  creditor  obtains  an  equit- 
able lien  upon  the  interest  and  things  in  action  of  the 
judgment  debtor,  which  he  has  a  right  to  retain,  not- 
withstanding his  proceedings  are  suspended  pending  an 
appeal  from  the  judgment  itself;  and  having  acquired 
such  a  lien  previous  to  an  appeal  from  the  judgment, 
he  cannot  be  deprived  of  it.  The  appeal  merely  sus- 
pends his  right  to  obtain  the  benefit  of  his  lien ;  it  does 
not  take  it  away.  {Gowdrey  v.  Carpenter,  17  Abb.  Pr. 
107).  The  commencement  of  the  proceedings  gives  the 
judgment  creditor  an  equitable  lien  on  the  debtors 
property,  which,  on  the  appointment  of  a  receiver,  be- 
comes a  legal  title  in  him,  as  of  the  date  of  the  service 
of  the  order  for  examination.  (McCorJde  v.  Eerrman, 
111  N.  Y.  297 ;  Matter  of  Pennsylvania  Glass  Gompany, 
28  Misc.  130).  Where  a  party  has  been  served  with  an 
order  requiring  him  to  appear  and  be  examined,  and 
restraining  him  from  disposing  of  any  of  his  property, 
its  effect  is  to  prohibit  the  disposition  of  any  of  his 
property  without  the  permission  of  the  court;  and  for 
some  time  the  narrow  rule  prevailed  that  although  he 
had  a  family  which  was  wholly  dependent  upon  his 
earnings  for  support,  still  he  was  not  authorized  to  dis- 
pose of  his  wages,  or  any  part  of  them,  without  the  per- 
mission of  the  court.     (Neivell  v.  Gutler,  19  Hun,  74; 


SUPPLEMENTARY   PROCEEDINGS.  543 

Hancock  v.  Sears,  29  Hun,  96) ,  The  case  last  cited  was 
taken  to  the  court  of  appeals,  and  was  there  reversed, 
the  court  holding  that,  where  the  earnings  of  the  debtor 
are  necessary  for  the  support  of  his  family,  he  has  the 
right  to  dispose  of  them  for  that  purpose,  to  the  extent 
of  his  earnings  for  the  period  of  sixty  days  before  the 
commencement  of  the  proceeding,  without  application 
to  the  court  for  permission  to  do  so,  as  they  are  exempt, 
and  not  liable  to  the  order  of  the  court.  {Hancock  v. 
Sears,  93  N.  Y.  79).  Where  an  order  is  served  on  the 
judgment  debtor  or  another  person,  although  it  is  irre- 
gular, it  is  the  duty  of  such  person  to  obey  it,  so  long  as 
it  is  in  force.  (Id.;  Shiilts  v.  Andreios,  54  How.  Pr. 
376 ;  Matter  of  Parrish,  28  App.  Div.  22) . 

Subdivision  4. — How  Order  Vacated  or  Modified. 

An  order  made  in  supplementary  proceedings  by  a 
judge  put  of  court  may  be  vacated  or  modified  by  the 
judge  who  made  it,  as  if  it  was  made  in  an  action ;  or  it, 
or  the  order  of  the  judge  vacating  or  modifying  it,  may 
be  vacated  or  modified,  upon  motion,  by  the  court  out  of 
which  the  execution  was  issued.  (Co.  Oiv.  Proc. 
§  2433). 

A  warrant  of  arrest  may  be  vacated  or  modified  in  the 
same  manner  as  an  order  for  the  examination  of  a  judg- 
ment debtor.  (Co.  Civ.  Proc.  §  2439;  see,  also,  subd.  2 
of  section  5,  supra) . 

In  a  case  where  the  motion  to  vacate  the  order  is 
based  upon  the  fact  that  the  judgment  had  been  fully 
satisfied  and  paid,  but  the  record  did  not  show  that 
fact,  the  motion  should  not  be  granted;  but  the  judg- 
ment debtor  should  move  in  the  original  action  to  have 
the  judgment  declared  satisfied  of  record.  On  such  a 
motion,  it  is  proper  to  order  a  reference  to  take  proof 
of  the  facts,  which  is  a  much  more  satisfactory  manner 
of  ascertaining  such  facts,  than  on  the  motion  to  vacate 
the  order.  (Austm  v.  Byrnes,  54  N.  Y.  Super.  Ct.  Rep. 
552).  Objections  to  the  order  should  be  made 
promptly.  It  is  too  late  to  object,  after  the  judgment 
debtor  appears  and  asks  for  an  adjournment  of  the  pro- 


544:  PRACTICE. 

ceedings,  without  raising  the  objectiou.  He  will  be 
held  to  have  waived  the  objection ;  unless  it  goes  to  the 
jurisdiction  of  the  judge  to  make  the  order.  (Newell 
V.  Cutler,  19  Hun,  74;  overruled  ou  another  point,  Han- 
cock V.  Scars,  93  N.  Y.  79).  If  the  affidavit  on  which 
the  order  is  founded  is  insufficient,  or  if  the  order  was 
improvidently  granted,  the  judgment  debtor  may  move 
to  vacate  the  order;  and  it  is  his  right  to  have  such 
motion  granted.  (Courtois  v.  Harrison,  1  Hilt.  109). 
The  court  on  such  a  motion  cannot  go  behind  the  judg- 
ment to  examine  objections  which  might  have  been 
raised  on  the  trial,  but  were  not.  (Id.).  A  party  is 
not  justified  in  disobeying  an  order,  because  it  is  irregu- 
lar; but  he  must  appear  and  make  his  objections,  unless 
there  is  an  entire  want  of  jurisdiction  to  make  it. 
[Arctic  F.  Ins.  Co.  v.  Hicks,  7  Abb.  Pr.  204;  Hilton  v. 
Patterson,  18  Id.  245).  Where  the  judgment  upon 
which  the  proceeding  is  based,  is  claimed  to  be  void,  the 
judgment  debtor  cannot  make  that  a  gi'ound  for  a  mo- 
tion to  vacate  the  order,  as  the  statute  does  not  confer 
upon  the  judge  who  grants  the  order,  the  right  to  review 
the  judgment  upon  which  the  proceeding  is  based;  and 
it  follows,  of  course,  that  if  the  judge  cannot  review  the 
judgment,  he  cannot  question  it  on  a  motion  to  vacate 
the  order,  on  that  ground.  (D  lossy  v.  West,  8  Daly, 
298;  Greenhall  v.  Unger,  20  Misc.  412).  Where  the 
affidavit  is  irregular,  the  proper  course  is  to  move  to 
vacate  the  order  on  the  return  day.  Such  objection 
cannot  be  raised  on  an  appeal  from  the  order  appoint- 
ing a  receiver.  (Unioi  Bank  v.  Sargeant,  53  Barb. 
422).  In  all  cases,  it  is  the  safest  practice  to  appear 
specially  for  the  purpose  of  raising  the  objection,  and 
moving  to  set  aside  or  vacate  the  order,  if  any  ground 
exists  upon  which  such  a  motion  can  be  based.  By 
appearing,  without  raising  any  objection  to  the  order, 
the  judgment  debtor  waives  any  objection  which  he 
might  have  taken,  if  it  had  been  promptly  raised.  It  is 
too  late  to  move  to  vacate  an  order  upon  the  ground 
that  the  sheriff's  return  upon  the  execution  is  defective, 
after   a   receiver   has   been   appointed   in    the   supple- 


SUPPLEMENTARY   PKOCEEDINGS.  545 

mentary  proceeding.  (Baker  v.  Herkimer,  43  Hun,  86) . 
Where,  however,  the  return  is  not  such  a  return  as  will 
warrant  the  granting  of  an  order,  the  order  should  be 
vacated.  (Marx  v.  Spaulding,  35  Hun,  478;  affd.,  99 
N.  Y.  675).  The  case  of  Forbes  v.  Spaulding  (8  Civ, 
Proc.  Rep.  135)  which  holds  to  the  contrary,  is  over- 
ruled as  to  that  point.  But  the  truth  of  the  sheriff's 
return  cannot  be  attacked  by  a  motion  to  vacate  the 
order  based  thereon.  (Eleventh  Ward  Bank  v.  Heather , 
22  Misc.  87). 

In  a  proper  case,  the  proceedings  will  be  stayed  to 
enable  the  judgment  debtor  to  apply  to  set  aside  the 
judgment,  or  an  execution  issued  thereon,  by  a  motion 
in  the  original  action.  (People  ex  rel.  Mace  v.  Oliver, 
66  Barb.  570).  An  irregularity  which  would  be  ground 
for  a  motion  to  vacate  the  order,  cannot  be  first  raised 
on  a  motion  to  commit  for  contempt.  (Hilton  v.  Patter- 
son, 18  Abb.  Pr.  245).  If  the  judgment  debtor  is  dis- 
charged in  insolvency  proceedings,  and  that  fact  is  set 
up,  the  order  will  be  vacated.  (Goursen  v.  Dearborn, 
7  Robt.  143;  Smith  v.  Paul,  20  How.  Pr.  97).  But  to 
entitle  him  to  be  relieved  on  that  ground,  he  should 
appear  and  produce  his  discharge ;  if  he  does  not  appear, 
he  may  be  punished  for  contempt,  notwithstanding  his 
discharge.  (Id.).  If  the  order  for  the  debtor's  exami- 
nation is  based  upon  an  execution  issued  out  of  the 
wrong  court,  it  will  be  vacated  on  motion  ( Gray  v.  Lie- 
hen,  8  Civ.  Proc.  Rep.  48) ;  but,  if  issued  five  years  after 
the  recovery  of  the  judgment,  without  leave  of  the  court, 
it  seems  that  that  is  not  a  ground  for  a  motion  to  vacate 
the  order;  but  the  debtor  should  raise  that  question 
in  a  direct  proceeding  for  that  purpose.  (U,  S.  Land 
&  Emig.  Go.  v.  Pike,  2  Law  Bull.  31;  see  Aultman  & 
Taylor  Go.  v.  Syme,  163  N.  Y.  54,  65;  54  App.  Div.  165). 

The  legal  presumption  that  a  judgment  has  been  paid 
after  twenty  years,  will  not  serve  to  abate  supplement- 
ary proceedings  which  were  begun  before  that  time,  if 
in  other  respects  such  proceedings  are  in  compliance 
with  the  statute.  (Driggs  v.  Williams,  15  Abb.  Pr. 
477). 

35 


546  PRACTICE. 

A  mere  irregularity  does  uot  authorize  the  judge  who 
made  the  order  to  set  the  same  aside  without  notice  to 
the  judgment  creditor.  (Dorsri/  v.  Ciiniiitiii(/s,  48  Hun, 
7<) ).  If  tlie  motion  is  made  on  the  ground  of  an  irregu- 
larity in  the  papers  upon  which  the  order  was  granted, 
the  irregularity  mtist  he  specified  in  the  notice  of  motion 
{^Sdinitzcr  v.  Willncr,  1  Misc.  497)  ;  but  a  jurisdic- 
tional defect  need  not  be  thus  specified.  {Zelie  v.  Vro- 
man,  22  Misc.  480).  The  appointment  in  supphMuent- 
ary  x^roceedings  of  a  receiver  of  a  judgment  debtor  is  not 
a  ground  for  vacating  a  third  party  order  subsequently 
obtained.  {Smith  v.  Cutter,  04  App.  Div.  412).  The 
vacating  of  an  order  for  a  debtor's  examination  will  not 
terminate  proceedings  under  a  warrant  obtained  after 
the  order,  as  the  two  proceedings  are  independent. 
[Frost  v.  Craig,  IS  Civ.  Proc.  Rep.  296).  If  a  judg- 
ment is  utterly  void,  as  having  been  recovered  against 
a  corporation  which  had  ceased  to  exist,  a  third  party 
order  will  be  vacated  on  that  ground  upon  the  applica- 
tion of  such  third  party.  (Matter  of  Stewart,  39  Misc. 
275;  40  Misc.  32;  affd.  on  op.  below,  86  App.  Div.  627). 

Subdivision  5. — How  Order  Appealed  From,  in 
Certain  Cases. 

Where  the  execution  was  issued  out  of  a  county  court, 
an  appeal  from  an  order,  made  in  the  course  of  the  pro- 
ceedings, may  be  taken  in  like  manner,  as  if  the  order 
was  made  in  an  action  brought  in  the  same  court.  (Co. 
Civ.  Proc.  §  2433). 

Section  2433  provides  that  orders  made  in  supple- 
mentary proceedings  shall  be  reviewed  only  by  the  two 
modes  specified  in  that  section ;  the  first  being  rather  in 
the  nature  of  a  motion  to  vacate  or  modify,  where  the 
order  is  made  in  a  proceeding  supplementary  to  an 
execution  issued  upon  a  judgment  other  than  that  of  a 
county  court;  such  an  order  must,  in  the  first  instance, 
be  reviewed  by  motion  [Palen  v.  Buslinell,  68  Hun, 
554)  ;  the  second  is  where  the  order  is  made  in  a  pro- 
ceeding supplementary  to  an  execution  issued  out  of  a 
county  court,  which  may  be  reviewed,  in  the  first  in- 


SUPPLEMENTARY   PROCEEDINGS.  547 

stance  by  au  a:ppcal  taken  in  like  manner  as  if  the  order 
was  made  in  an  action  brought  in  the  same  court. 
( Weaver  v.  Brydges,  85  Hun,  503 ) . 

Orders  affecting  a  substantial  right,  made  by  the 
county  judge  in  an  action  brought  in,  or  on  an  appeal 
taken  to,  the  county  court,  are  appealable  to  the  appel- 
late division.  (Co.  Civ.  Proc.  §  1342;  Blll'mgtoii  v. 
Billington,  16  Civ.  Proc.  Rep.  56;  Matter  of  Patterson, 
12  App.  Div.  123 ) .  An  appeal  lies  in  the  first  instance 
to  the  appellate  division  from  an  order  made  in  these 
proceedings,  based  on  a  transcript  of  a  judgment  of  a 
justice's  court,  filed  in  the  county  clerk's  office.  (Id.). 
It  was  held  in  the  case  of  Finch  v.  Mannering  (46  Hun, 
323),  that  where  the  supplementary  proceedings  were 
instituted  after  the  issue  of  an  execution  out  of  the 
supreme  court,  the  order  must  be  reviewed  in  the  first 
instance  by  a  motion  to  the  court  out  of  which  the  exe- 
cution was  issued,  to  vacate  or  modify  the  order;  citing 
the  case  of  ChamherJain  v.  Gallup  (25  Hun,  318), 
where  it  was  said  that  an  appeal  does  not  lie  from  an 
order  in  supplementary  proceedings  made  by  a  judge 
out  of  court.  But  where  the  execution  was  issued  out 
of  the  county  court,  the  code  provides  that  the  order  in 
such  case,  may  be  appealed  from;  and  this  may  be 
directly  to  the  appellate  division.  {Baker  v.  Eerldmer, 
43  Hun,  86) .  The  right  to  appeal,  or  to  move  to  vacate, 
in  these  proceedings  is  not  limited  to  the  final  order; 
but  applies  to  any  order  in  the  proceedings  which 
affects  a  substantial  right  of  either  party.  {Hart  v. 
Johnson,  43  Hun,  505).  Where  the  special  term  of  the 
supreme  court  makes  an  order  adjudging  the  judg- 
ment debtor  to  be  in  contempt,  he  may  appeal  from 
such  order  to  the  appellate  division.  (Id.;  People  ex 
rel.  Grant  v.  ^yarner,  51  Hun,  53;  affd.  on  op.  below, 
125  N.  Y.  746 ) .  So,  also,  where  an  order  has  been  made 
dismissing  the  proceeding,  as  such  an  order  affects  a 
substantial  right  of  the  plaintiff.  {Holstein  v.  Rice,  15 
Abb.  Pr.  307;  H aires  v.  Barr,  7  Robt.  452).  The  re- 
striction imposed  by  subdivision  1  of  section  2433  ap- 
plies to  an  order  of  a  judge  of  the  supreme  court  direct- 
ing the  judgment  debtor  to  pay  a  certain  sum  of  money; 


548  PRACTICE. 

and  such  au  order  cannot  be  reviewed  upou  an  appeal 
from  the  order  adjudging  him  in  contempt  for  non- 
compliance, even  though  the  first-mentioned  order  is 
specified  in  the  notice  of  appeal  as  one  to  be  reviewed ; 
the  proper  course  to  review  such  order  is  by  a  motion 
to  vacate.  (Matter  of  Van  ISiess,  17  App.  Div.  581). 
Where  an  appeal  lies  to  the  appellate  division, 
it  can  only  be  heard  at  the  appellate  division  of  the 
judicial  department  embracing  the  county  where  such 
proceedings  are  pending.  [Mallory  v.  Gulick,  15  Abb. 
Pr.  307,  note). 

It  has  been  held  that  the  effect  of  an  appeal  in  these 
proceedings,  is  not  to  stay  the  proceedings;  and  that, 
pending  such  appeal,  the  judgment  debtor  cannot  refuse 
to  appear  and  be  examined  {Sluyter  v.  Smith,  N.  Y. 
Super  Ct.,  Feb.  1858)  ;  where,  however,  the  appeal  is 
from  the  judgment  upon  which  the  proceedings  are 
based,  and  there  is  given  security  to  stay  the  proceed- 
ings, such  appeal  suspends  the  proceedings;  but  it  does 
not  authorize  a  dismissal  of  them;  as  the  creditor  is 
entitled  to  his  lien  obtained  thereby ;  and  the  appeal  has 
only  the  effect  of  delaying  the  enforcement  of  such  lien. 
( Cowdrey  v.  Carpenter,  17  Abb.  Pr.  107 ) .  If,  however, 
no  security  is  given  to  stay  the  proceedings  pending  the 
appeal,  it  does  not  stay  them ;  but  the  examination  may 
go  on  as  if  no  appeal  had  been  taken.  {ArnoitAc  v. 
Eomans,  32  How.  Pr.  382).  An  injunction  granted  in 
the  order,  remains  in  force,  notwithstanding  the  pro- 
ceedings have  been  stayed  pending  the  appeal.  {Woolf 
V.  Jacohs,  36  N.  Y.  Super.  Ct.  Eep.  408). 

If  the  court  had  no  authority  to  make  the  order,  for 
want  of  jurisdiction,  the  error  should  be  corrected  by  an 
appeal  directly  from  the  order,  and  not  by  a  motion  to 
set  it  aside.  (Lippincott  v.  Westray,  6  Civ.  Proc.  Rep. 
74). 

Sec.    7.      The  injunction. 

Subdivision  1. — What  to  Contain. 

The  judge  by  whom  the  order  or  warrant  was  gi'anted 
or  to  whom  it  is  returnable,  may  make  an  injunction 
order,  restraining  any  person  or  corporation,  whether  a 


SUPPLEMENTARY   PROCEEDINGS.  549 

party  or  not  a  party  to  the  special  proceeding,  from 
making  or  suffering  any  transfer  or  other  disposition  of, 
or  interference  with,  the  property  of  the  judgment 
debtor,  or  the  property  or  debt,  concerning  which  any 
person  is  required  to  attend  and  be  examined,  until 
further  direction  in  the  premises.  Such  an  injunction 
order  may  be  made  simultaneously  with  the  order  or 
warrant,  by  which  the  special  proceeding  is  instituted, 
and  upon  the  same  papers;  or  afterwards,  upon  an  affi- 
davit, showing  sufficient  grounds  therefor.  (Co.  Civ. 
Proc.  §  2451). 

The  provisions  of  this  section,  with  reference  to  the 
injunction  to  restrain  the  judgment  debtor  from  trans- 
ferring or  disposing  of  his  property,  differ  from  the 
remedy  granted  by  an  injunction  in  an  action.  The 
judgment  debtor  under  an  injunction  granted  in  these 
proceedings  is  not  guilty  of  a  contempt  of  court,  by 
applying  his  personal  earnings  for  the  period  of  sixty 
days  before  the  commencement  of  the  proceeding,  to  the 
support  of  his  family,  although  the  injunction  is,  in 
terms,  a  prohibition  upon  him  from  interfering  with, 
or  making  or  suffering  "  any  "  transfer  or  disposition 
of  his  property.  And  he  may  do  this  even  without  the 
permission  of  the  court,  as  such  earnings  are  exempt, 
and  cannot  be  reached  by  the  order  of  the  court.  (Co. 
Civ.  Proc.  §  2463).  It  is  not  necessary  that  the  debtor 
should  bring  the  facts  entitling  him  to  such  exemption, 
to  the  attention  of  the  judge  or  court,  before  applying 
his  earnings  to  the  relief  of  the  necessities  of  his 
family;  as  that  course  would  cause  unnecessary  delay, 
and  perhaps  suffering.  {Hancock  v.  Sears,  93  N.  Y. 
79).  The  case  last  cited,  reverses  the  decision  of  the 
general  term  in  the  same  case  (29  Hun,  96),  and  over- 
rules the  case  of  Newell  v.  Cutler  (19  Hun,  74).  The 
injunction  order  is  served  in  the  same  way  as  an  order 
for  the  examination  of  the  judgment  debtor,  which  sub- 
ject has  been  treated  under  the  head  of  the  service  of  the 
order.  (Section  6,  subd.  2,  supra).  Such  an  order 
does  not  need  the  seal  of  the  court;  the  signature  of  the 
judge  is  sufficient.  No  security  is  required  to  obtain 
the  injunction.    The  injunction  may  be  granted  at  any 


550  PKACTICE. 

time,  and  oven  against  a  ]>('isoii  not  a  party  to  the  suit. 
{Seclei/  V.  a<irris(„i.  10  Abb.  Pr.  4G0). 

Subdivision  2. — Urox  ^^'IIAT  I'apeus  Injunction 
Granted. 

An  injunction  order  may  be  made  upon  the  same 
papers  upon  which  an  order  is  granted,  or  a  warrant  of 
arrest  is  issued  in  the  proceedings,  if  it  is  made  at  the 
same  time.  AVhere  the  injunction  is  granted  after  the 
issuing  of  the  warrant,  or  the  making  of  the  order  it 
may  be  granted  upon  an  affidavit  showing  sufficient 
grounds  therefor.  (Co.  Civ.  Proc.  §  2451).  The  affi- 
davit upon  which  the  injunction  is  granted,  where  it  is 
after  tlie  uuxking  of  the  order  for  the  examination  of  the 
judgment  debtor  or  other  person,  or  after  the  issuing 
of  the  warrant  of  arrest,  need  not  contain  the  facts 
necessary  to  give  the  court  jurisdiction  of  the  proceed- 
ing; as  such  facts  having  already  been  proved  by  the 
affidavit  upon  which  the  proceeding  is  based,  it  is  un- 
necessary to  repeat  them  at  any  subsequent  time;  and 
the  affidavit,  for  the  injunction,  need  only  give  the  facts 
which  show  that  the  court  should  restrain  the  defend- 
ant or  other  person  from  transferring  or  disposing,  or 
otherwise  interfering  with  the  property  of  such  judg- 
ment debtor,  in  order  to  protect  the  rights  of  the  cred- 
itor. Slight  reasons  to  apprehend  that  the  debtor  is 
intending  to  dispose  of  his  property,  with  intent  to  pre- 
vent the  creditor  from  reaching  it,  will  be  sufficient 
upon  which  to  ask  for  an  injunction  during  the  pen- 
dency of  the  proceeding.  An  order  granted  after  the 
order  or  wan-ant  is  made,  should  be  served  in  the  same 
manner  as  where  it  is  granted  at  the  time  of  the  making 
of  the  order.     (Co.  Civ.  Proc.  §  2452). 

Subdivision  3. — Effect  of  the  Injunction. 

As  we  have  seen  in  the  first  subdivision  of  this  section, 
the  injunction  in  these  proceedings  has  the  effect  of  pro- 
hibiting the  judgment  debtor  or  person  enjoined,  from 
making  or  suffering  any  transfer  or  other  disposition 
of,  or  interference  with  the  property  of,  the  judgment 


SUPPLEMENTARY    PROCEEDINGS.  551 

debtor.  As  to  the  rights  of  the  judgment  debtor  to 
apply  his  earnings  for  the  sixty  days  preceding  such 
order,  see  subdivision  1  of  section  2  of  article  I  of  this 
chapter  and  subdivision  1  of  this  section.  It  has  been 
held  that  the  injunction  only  affects  property  received 
or  earned  before  the  making  of  the  order  (Atl-inson  v. 
Seicinc,  11  Abb.  N.  C.  384)  ;  and  that  it  does  not  affect 
property  received  or  earned  after  the  making  of  the 
order,  but  before  the  service  of  it.  ( Campbell  v.  Genet, 
2  Hilt,  290).  The  case  last  cited  is  contrary  to  the 
decision  in  Sands  v.  Roberts  (8  Abb.  Pr.  343),  which 
holds  that  the  injunction  affects  property  received  or 
earned  by  the  judgment  debtor  down  to  the  time  of  the 
service  of  the  order.  The  question,  however,  is  no 
longer  open,  as  the  code  declares  that  the  title  of  the 
receiver  in  these  proceedings  extends  back  so  as  to  in- 
clude the  personal  property  of  the  judgment  debtor  at 
the  time  of  the  service  of  the  order  or  warrant.  (Co. 
Civ.  Proc.  §  2469;  Joi/ce  v.  Spafard,  9  Civ.  Proc.  Rep. 
342;  Rainsford  v.  Temple,  3  Misc.  294).  Mr.  Throop 
in  his  note  to  this  section  says  that  this  rule  is  not  only 
the  most  just  as  between  creditors,  in  regard  to  their 
diligence  in  obtaining  their  lien,  but  that  it  is  in 
accordance  with  the  weight  of  authority;  and  that 
it  corresponds  to  the  rule  in  equity  as  modified  by  the 
modern  practice;  for  by  the  former  practice  the  rela- 
tion of  the  creditor's  lien  back  to  the  filing  of  the  bill, 
rested  upon  the  gTound  that  the  action  was  commenced 
thereby;  whereas,  now  an  action  is  commenced  by  the 
service  of  the  summons  upon  the  defendant;  and  the 
proceeding  supplementary  to  execution  is  commenced 
by  the  service  of  the  order.  Where,  however,  the  party 
enjoined,  has  knowledge  of  the  granting  of  the  injunc- 
tion, as  by  being  present  when  it  was  gTanted,  the  in- 
junction takes  effect  at  the  time  it  is  granted,  although 
no  order  has  been  served  on  him.  {Livingston  v.  Swift, 
23  How.  Pr.  1).  The  fact  that  the  proceedings  are 
irregular,  does  not  render  the  injunction  void;  and  it 
cannot  be  disregarded ;  but  if  the  proceedings  are  void, 
for  any  reason,  the  injuuction  is  also  void.  [Reed  v. 
Champagne,  5  Wk.  Dig.  227).     Before  the  code  of  civil 


552  PRACTICE. 

procedure,  the  injunction  could  not  be  granted  against 
persons  not  parties  to  the  proceedings  {King  v.  Tusla, 
1  Duer,  635)  ;  but  that  case  and  others  holding  the  same 
rule,  have  been  overruled  by  the  provisions  of  the  code. 
(Co.  Civ.  Proc.  §  2451). 

Where  a  bank  has  been  served  witli  a  third  party 
order  and  has  been  enjoined  from  paying  out  certain 
money,  standing  in  the  name  of  a  person  who  is  not  a 
party  to  the  supplementary^  proceedings,  it  is  justified 
in  refusing  to  pay  a  check  drawn  by  such  other  person. 
{Strauss  v.  YorJcville  Bank,  32  Misc.  239).  A  public 
officer  upon  whom  an  injunction  has  been  served,  pro- 
hibiting the  payment  by  him  of  money  deposited  in  lieu 
of  bail,  cannot  be  compelled  by  mandamus  to  pay  such 
money  to  a  person  claiming  it.  {Rothschild  v.  Gould, 
84  App.  Div.  196). 

Subdivision  4. — How  Injunction  Vacated  or 
Modified. 

The  judge  or  the  court  may  vacate  or  modify  an  in- 
junction granted  in  these  proceedings,  in  a  proper  case. 
It  may  as  a  condition  of  granting  an  application  to 
vacate  or  modify  the  injunction  order,  require  the  appli- 
cant to  give  security,  in  such  a  sum  and  in  such  a  man- 
ner, as  justice  requires.     (Co.  Civ.  Proc.  §  2451). 

An  injunction  continues  in  force  until  vacated  or  dis- 
solved by  another  order.  Where,  however,  the  judgment 
creditor  unreasonably  neglects  or  delays  to  prosecute 
his  proceeding,  the  injunction  may  become  dormant, 
and  the  person  restrained  may  be  no  longer  required  to 
obey  it.     {Meyers  v.  Ilerhert,  64  Hun,  200). 

The  words  "  until  further  direction  in  the  premises  " 
are  complied  with  by  the  appointment  of  a  receiver ;  and 
if  the  injunction  is  desired  to  be  continued  in  force  after 
the  appointment  of  a  receiver,  it  is  the  better  practice  to 
insert  such  a  restraining  order  in  the  order  appointing 
the  receiver,  or  to  specify  in  such  order  that  the  in- 
junction theretofore  gi-anted  shall  continue  in  force. 
{People  ex  rel.  Morris  v.  Randall,  73  N.  Y.  416).  The 
injunction  is  in  the  nature  of  a  preliminary  precaution 


SUPPLEMENTARY   PROCEEDINGS.  553 

taken  for  the  protection  of  the  creditor's  lien,  and 
merely  as  a  temporary  relief,  and  not  as  a  permanent 
restraint  upon  the  judgment  debtor;  and  when  the  judge 
or  court  makes  a  further  direction  in  the  premises,  as 
by  appointing  a  receiver  of  the  property,  such  order  will 
be  regarded  as  superseding  the  injunction  order,  unless 
the  injunction  is  expressly  continued.  (Id.).  An  in- 
junction is  not  vacated  by  a  mere  order  staying  the 
proceeding  pending  an  appeal  from  the  judgment  upon 
which  the  proceeding  is  based.  {Woolf  v.  Jacobs^  36 
N.  Y.  Super.  Ct.  Rep.  408). 

If  the  proceedings  are  abandoned  the  injunction  fails. 
{Ballon  V.  Boland,  14  Hun,  355).  But  the  mere  failure 
of  the  judge  or  referee  to  be  present  at  the  adjourned 
day  does  not  dissolve  the  injunction,  unless  the  pro- 
ceedings are  vacated,  or  lapse  by  reason  of  such  absence. 
{Reynolds  v.  McElhone,  20  How.  Pr.  454).  The  absence 
of  the  referee  appointed  in  these  proceedings  at  the  ad- 
journed day  does  not  terminate  the  proceedings,  but 
they  may  be  revived  by  an  order  made  by  the  judge  con- 
tinuing them.  {Eeihen  v.  Shipherd,  16  Civ.  Proc.  Rep. 
183).  An  indefinite  adjournment  of  the  examination  to 
a  time  to  be  thereafter  fixed  does  not  in  itself  terminate 
the  injunction  {Rothschild  v.  Gould,  84  App.  Div.  196) ; 
but  such  an  adjournment  followed  by  inaction  for  three 
years  was  held  an  abandonment  of  the  proceeding. 
(Meyers  v.  Herbert,  64  Hun,  200). 

An  injunction  should  be  vacated,  if  upon  all  the  evi- 
dence disclosed,  the  judge  should  not  have  granted  it  in 
the  first  instance.  {Moser  v.  Polhamus,  4  Abb.  Pr.  N.  S. 
442).  Where,  as  a  condition  of  vacating  the  injunction, 
the  judge  directs  the  applicant  to  give  security,  the 
amount  thereof  is  discretionary  with  the  judge;  but  it 
should  be  sufiQcient  to  protect  the  creditor;  and  should 
not  be  in  a  less  amount  than  the  amount  due  to  said 
creditor. 


554  PRACTICE. 


ARTICLE  II. 

PROCEEDINGS   BEFORE   REFEREE. 
SECTION. 

1.  The  referee. 

2.  Powers  and  duties  of  referee. 

3.  Hearing  before  referee. 

4.  Examination  of  witnesses. 

5.  Eeport  of  referee. 

Sec.    1.    The  referee. 

Subdivision   1. — When   Referee   may   be  Appointed. 

An  order,  requiring  a  person  to  attend  and  be  ex- 
amined, made  pursuant  to  any  provision  of  the  code, 
must  require  him  so  to  attend  and  be  examined,  either 
before  the  judge  to  whom  the  order  is  returnable,  or 
before  a  referee  designated  therein.  (Co.  Civ.  Proc. 
§  2442). 

At  any  stage  of  the  proceedings,  the  judge  to  Avhom 
the  order  is  returnable  ma}',  in  his  discretion,  make  an 
order,  directing  that  any  other  examination,  or  testi- 
mony, be  taken  by,  or  that  a  question  arising  be  referred 
to,  a  referee,  designated  in  the  order.  Where  a  question 
is  so  referred,  the  referee  may  be  directed  to  report 
either  the  evidence  or  the  facts.    (Co.  Civ.  Proc.  §  2443). 

W^here  the  order  directs  the  examination  to  be  had 
before  a  referee,  it  is  the  common  practice  to  name  the 
referee  in  the  order,  giving  his  office  address,  and  fixing 
the  time  for  the  first  appearance  of  the  judgment  debtor. 
The  referee  is  to  be  appointed  by  the  judge;  but  it  is 
usual  to  appoint  a  referee  named  by  the  judgment  cred- 
itor, if  there  is  no  reason  to  apprehend  collusion.  But 
it  has  been  held  that  the  court  should  not  appoint 
one  as  referee  in  these  proceedings  who  has  his 
ofiSce  in  the  same  building  as  that  occupied  by  the 
attorney  of  the  judgment  creditor.  ( Gilhert  V.  Froth- 
ingliam,  13  Civ.  Proc.  Rep.  288).  The  rules  with 
regard  to  who  may  be  a  referee  in  these  proceed- 
ings, are  the  same  as  in  any  other  reference,  and 
will  be  found  fully  treated  of  in  vol.  II,  p.  416.  The 
referee  should  be  free  from  all  just  objections;  and, 


SUPPLEMENTARY    PROCEEDINGS.  555 

except  where  agreed  to  by  both  parties,  he  must  be  an 
attorney  in  good  standing;  nor  shall  he  be  one,  who  is 
the  partner  or  clerk  of  the  attorney  or  counsel  of  the 
creditor,  or  who  is  in  any  way  connected  in  business 
with  such  attorney  or  counsel,  or  who  occupies  the  same 
oflQce  with  such  attorney  or  counsel.  (Genl.  Rule,  79). 
Where  an  improper  person  has  been  named  as  referee, 
the  party  objecting  thereto,  should  apply  to  the  judge 
appointing  him,  for  his  removal ;  and  such  judge  has  the 
power  to  remove  him  and  appoint  another.  {Pardee  v. 
Tilton,  11  Wk.  Dig.  455;  83  N.  Y.  623).  Such  an  order 
is  discretionary  with  the  judge,  and  is  not  appealable  to 
the  court  of  appeals.  (Id.).  The  order  appointing  the 
referee  may  be  a  separate  order,  or  it  may  be  incorpo- 
rated in  the  first  order  directing  the  examination  of  the 
debtor.     {Leims  v.  Fenfield,  39"How.  Pr.  490). 

The  referee  may  be  appointed  in  the  first  instance  be- 
fore the  judgment  debtor  has  appeared.  ( Green  v.  Bul- 
lard,  3  How.  Pr.  313).  Section  90  of  the  code  of  civil 
procedure  specifying  who  may  not  be  appointed  referee 
in  New  York  county,  applies  to  these  proceedings.  A 
violation  of  such  provision  seems,  however,  to  be  an 
irregularity  only,  which  cannot  be  set  up  by  third  per- 
sons, or  in  a  collateral  proceeding.  [Moore  v.  Taylor, 
40  Hun,  56).  A  justice  of  the  supreme  court  may  ap- 
point a  referee  to  take  the  examination  in  any  part  of 
the  state;  and  such  referee  need  not  be  a  resident  of 
the  county  where  the  judgment  debtor  resides  or  has  his 
place  of  business.  {Bingham  v.  Dishrow,  37  Barb.  24). 
But  the  order  cannot  require  the  judgment  debtor  to 
appear  before  such  referee  in  a  county  other  than  that 
in  which  he  resides  or  has  a  place  of  business.  ( Co.  Civ. 
Proc.  §  2459).  Where  the  person  directed  to  appear 
before  the  referee  is  a  non-resident,  having  no  place  of 
business  within  the  state,  the  order  can  only  require  him 
to  appear  in  the  county  in  which  the  judgment-roll  is 
filed.  {Amcaij  v.  David,  9  Hun,  296).  The  order  of 
reference  may  not  only  direct  the  judgment  debtor  to 
appear  before  the  referee  at  a  time  and  place  specified 
in  the  order,  and  from  time  to  time  as  such  referee  may 
direct,  but  may  also  contain  a  direction  that  the  debtor 


556  PRACTICE. 

appear  before  the  judge  who  granted  the  order,  on  the 
first  Monday,  or  other  day  named,  after  the  close  of  the 
examination,  for  the  further  order  of  said  judge,  in  the 
premises.     {ISivJdcs  v.  Hanlcy,  4  Abb.  N.  C.  231). 

Where  there  is  any  objection  to  the  referee,  it  must 
be  made  to  the  judge  who  appointed  him.  (Tremain  V. 
Richardson^  GS  N.  Y.  017  j. 

Subdivision  2. — How  Referee  Qualified. 

The  referee  in  these  proceedings  does  not  acquire 
jurisdiction  to  take  testimony  until  he  has  complied 
with  the  provisions  of  the  code,  which  are  contained  in 
the  following  section: 

Unless  the  parties  expressly  waive  the  referee's  oath, 
a  referee,  appointed  as  prescribed  in  this  proceeding 
must,  before  entering  upon  an  examination,  or  taking 
testimony,  subscribe  and  take  an  oath,  that  he  will  faith- 
fully and  fairly  discharge  his  duty  upon  the  reference, 
and  make  a  just  and  true  report  according  to  the  best 
of  his  understanding.  The  oath  may  be  administered 
by  an  officer  designated  in  section  842  of  the  code,  and 
must  be  returned  to  the  judge,  with  the  report  or  testi- 
mony.     (Co.  Civ.  Proc.  §  2445). 

This  section  expressly  requires  that  the  referee  must 
be  sworn,  before  one  of  the  officers  named  in  section 
842  of  the  code ;  unless  such  oath  is  expressly  waived  by 
the  parties.  Such  waiver,  if  made,  should  be  express, 
and  if  not  made  in  writing,  it  should  be  taken  down  by 
the  referee  and  form  a  part  of  his  return ;  and  if  in  writ- 
ing, it  should  be  annexed  to  the  report,  in  the  same  man- 
ner as  the  oath  would  have  been,  in  case  it  had  been 
taken.  It  takes  the  place  of  the  oath.  An  omission,  in 
these  proceedings,  to  take  the  oath,  or  to  obtain  the  ex- 
press waiver  of  it,  is  a  defect  which  goes  to  the  juris- 
diction of  the  referee  to  take  testimony  under  the  order; 
and  his  report  may  be  set  aside  on  that  ground ;  and  it 
is  not  sufficient  that  the  plaintiff  waived  the  oath;  it 
must  be  waived  by  both  parties,  and  entered  in  the 
minutes  of  the  referee.  {Browning  v.  Marvin,  5  Abb. 
N.  C.  285).    The  rule  is  more  strict  in  these  proceedings, 


SUPPLEMENTARY   PROCEEDINGS.  557 

than  in  an  ordinary  reference;  and  the  requirement  of 
the  code  that  the  oath  must  be  taken,  or  expressly 
waived,  before  the  referee  can  proceed  to  take  testimony, 
is  explicit,  and  must  be  followed.     ( Id. ) . 

Sec.    2.    Poivers  and  duties  of  referee. 

It  has  not  been  thought  necessary  in  this  chapter  to 
go  into  the  proceedings,  where  the  examination  is  had 
before  the  judge  who  grants  the  order,  as  that  is  so  rare 
as  a  matter  of  practice,  that  the  rules  with  reference  to 
the  examination  before  a  referee  will  be  sufficient  to 
guide  the  practitioner  in  those  cases  where  the  examina- 
tion is  had  before  the  judge  or  justice  who  makes  the 
order.  The  principal  difference  between  the  examina- 
tion before  a  judge  and  that  which  is  had  before  a 
referee,  is  the  power  which  the  judge  has  to  compel  the 
attendance  of  the  witnesses  and  their  answers  to  proper 
questions,  by  punishing  them  for  contempt  for  a  refusal 
to  attend  or  answer;  which  power  is  not  given  to  the 
referee ;  but  he  must  report  such  facts  to  the  judge  who 
granted  the  order,  or  to  whom  it  is  made  returnable. 
The  judge  is  not  required  to  take  an  oath,  as  is  a  referee; 
and  no  report,  as  in  the  case  of  a  referee,  is  required,  in 
order  to  bring  all  the  facts  disclosed  upon  the  examina- 
tion, to  the  attention  of  the  judge  or  court.  The  judge 
or  referee  may  adjourn  the  proceedings  from  time 'to 
time  as  he  thinks  proper.  ( Co,  Civ.  Proc.  §  2444 ) .  The 
rules  as  to  the  scope  of  the  examination,  who  may  be 
examined,  what  constitutes  contempt,  and  the  like,  are 
the  same  whether  the  examination  is  had  before  the 
judge,  or  a  referee. 

A  referee  in  these  proceedings  is  vested  with  the  same 
power  to  adjourn  the  proceedings  that  a  master  in 
chancery  had  when  acting  under  an  order  for  the  exam- 
ination of  a  debtor  in  a  creditor's  suit.  He  may  adjourn 
the  proceedings  from  time  to  time,  even  though  the 
debtor  to  be  examined,  refuses  to  consent  thereto. 
{Kaufman  v.  Thrasher,  10  Hun,  438).  This  case  over- 
rules, substantially,  the  dictum  in  the  case  of  the  People 
ex  rel.  Williams  v.  Eulhurt  (5  How.  Pr.  446),  where  it 
was  said  that  the  referee  has  no  more  power  to  adjourn 


558  PRACTICE. 

those  proceedings,  without  the  conseut  of  the  party 
against  whom  they  are  had,  than  a  justice  of  the  peace 
would  have  to  adjourn  a  case  l)efore  liiiu,  without  the 
authority  of  the  statute.  Such  a  construction  of  the 
language  of  the  code  would  produce  great  inconvenience 
in  most  cases;  and  in  many  cases  it  would  defeat  the 
remedy  intended  to  be  given  by  the  statute.  The  power 
of  the  referee  to  adjourn  is  the  same  as  that  of  a  judge 
when  the  examination  is  before  him.  Of  course,  the 
power  to  adjourn  should  not  be  abused ;  it  should  not  be 
exercised  except  for  good  cause  shown,  either  by  aflfl- 
davit  or  other  satisfactory  proof,  unless  such  proof  is 
waived.  {Kaufman  v.  Thrasher,  10  Hun,  438;  Allen  v. 
Starring,  26  How.  Pr.  57).  He  may  adjourn  to  a 
different  place  within  the  county  of  the  debtor's  resi- 
dence. [Weaver  v.  Brydges,  85  Hun,  503).  Where  the 
order  appointing  the  referee,  does  not  fix  the  time  at 
which  the  jiTdgment  debtor  shall  appear,  but  directs  that 
he  appear  at  a  time  to  be  appointed  by  the  referee,  the 
referee  has  power  to  require  the  parties  to  appear  ac- 
cordingly. {Redmond  v.  Goldsmith,  2  Law  Bull.  19). 
He  may  issue  subpoenas  for  the  attendance  of  witnesses. 
(People  V.  Ball,  22  Wk.  Dig.  275).  No  jurisdiction  for 
such  purpose  is  acquired,  however,  until  service  of  the 
order  upon  the  judgment  debtor  or  his  appearance  in 
the  proceedings.  [People  ex  rel.  Grant  v.  ^yarner,  51 
Hun,  53;  affd.  on  op.  below,  125  N.  Y.  746). 

Sections  852,  et  seq.,  of  the  code  which  refer  to  the 
manner  of  compelling  the  attendance  of  witnesses,  apply 
to  these  proceedings.  It  is  the  duty  of  the  referee  to 
take  the  examination,  and  not  to  make  it  himself;  and 
if  he  attempts  to  inake  the  examination  in  an  oflScious 
manner,  he  transcends  his  duty.  [People  v.  Leipzig, 
52  How.  Pr.  410). 

After  the  examination  is  concluded,  it  is  the  duty  of 
the  referee  to  certify  to  the  judge  to  whom  the  order  is 
returnable,  all  the  evidence  and  other  proceedings  taken 
before  him  (Co.  Civ.  Proc.  §  2442)  ;  or  the  facts,  if  the 
order  so  directs.  (Co.  Civ.  Proc.  §  2443).  This  will  be 
more  fully  discussed  in  section  five  of  this  article,  under 
the  head  of  the  referee's  report. 


SUPPLEMENTARY    PROCEEDINGS.  559 

Sec.    3.    Hearing  before  referee. 

Either  party  may  be  examined  as  a  witness  in  his  own 
behalf,  and  may  produce  and  examine  other  witnesses, 
as  upon  the  trial  of  an  action.  Upon  such  examination 
each  answer  of  a  party  or  a  witness  examined  must  be 
under  oath.  Where  a  corporation  is  examined  it  must 
attend  by,  and  answer  under  the  oath  of,  an  oflflcer 
thereof;  and  the  judge  may,  in  his  discretion,  specify 
the  ofllcer.  ( Co.  Civ.  Proc.  §  2444 ) .  The  witnesses  may 
be  required  to  attend  by  an  ordinary  subpoena,  under 
the  hand  of  the  judge,  or  the  referee,  as  in  other  refer- 
ences {Knoioles  v.  De  Lazare,  8  Civ.  Proc.  Rep.  386)  ; 
and  may  be  required  to  produce  books  and  papers  by  the 
ordinary  subpoena  duces  tecum.  {Holmes  v.  Stietz,  6 
Civ.  Proc.  Rep.  362,  note).  Such  subpoenas  are  served 
as  in  an  ordinary  reference,  as  to  which  see  vol.  II,  pp. 
78,  424. 

The  wife  of  the  judgment  debtor  may  be  examined  as 
a  witness,  for  the  purpose  of  discovering  the  disposition 
of  the  property  of  the  judgment  debtor.  [Lockwood  v. 
^yorstoll,  15  Abb.  Pr.  430,  note).  Where  a  witness  ap- 
pears without  being  subpoenaed,  he  is,  nevertheless, 
bound  to  answer  proper  questions,  upon  his  examina- 
tion. {People  V.  Marston,  18  Abb.  Pr.  257).  It  is  at 
the  option  of  the  creditor,  whether  or  not  he  will  ex- 
amine the  debtor  or  witnesses,  or  both  {Graves  v.  Lake, 
12  How.  Pr.  33)  ;  but  if  he  does,  the  debtor  may  be  ex- 
amined in  his  own  behalf  on  the  subject  matter  of  the 
direct  examination.     {Le  Roy  v.  Halseij,  1  Duer,  589). 

If  the  judgment  debtor,  or  other  person,  required  to 
attend  and  be  examined,  as  prescribed  in  this  proceed- 
ing, or  the  officer  of  a  corporation,  required  to  attend 
in  its  behalf,  is,  at  the  time  of  the  service  of  the  order 
upon  him,  a  resident  of  the  state,  or  then  has  an  office, 
within  the  state,  for  the  regular  transaction  of  business 
in  person,  he  cannot  be  compelled  to  attend,  pursuant 
to  the  order,  or  to  any  adjournment,  at  a  place  without 
the  county  wherein  his  residence  or  place  of  business  is 
situated.  '  (Co.  Civ.  Proc.  §  2459). 

This  prohibition  does  not  apply,  however,  to  witnesses 
subpoenaed  to  appear  and  testify.     Such  a  witness  may 


560  PRACTICE. 

be  compelled  to  attend  iu  a  county  other  than  that  of 
his  residence.     (Foster  v.  WilJcinson,  37  Hun,  242). 

Sec.    4.    £xaiumatiou  o£  vritnesses. 

Subdivision  1. — Scope  and  Nature  of  Such 
Examination. 

As  has  pretty  fully  appeared  already  in  this  chapter, 
the  nature  and  object  of  the  proceedings  are  the  dis- 
covery of  the  debtor's  property;  and  the  scope  of  the 
examination  is  broad  enough  to  give  the  creditor  a  com- 
plete and  searching  examination  of  the  judgment  debtor, 
and  of  those  who  are  indebted  to  him,  or  have  possession 
of  his  property,  for  the  purpose  of  ascertaining  the 
amount  and  condition,  as  well  as  the  disposition  which 
such  debtor  has  made  or  attempted  to  make  of  his  prop- 
erty; and  to  discover  whether  the  debtor  has  any  prop- 
erty or  interest  in  property  which  may  be  reached  to 
satisfy  the  judgment,  whether  such  property  is  in  the 
possession  of  the  debtor,  or  of  a  third  person  or  corpo- 
ration. (Forbes  v.  WiUardy  37  How.  Pr.  193;  54  Barb. 
520). 

The  proceedings  on  the  examination  are  inquisitorial 
in  their  nature,  and  they  were  so  intended  to  be  by  the 
legislature.  The  courts  so  interpret  the  provisions  of 
the  code,  which  give  this  remedy;  and  it  is  but  justice 
to  the  creditor  class  that  such  an  interpretation  should 
be  given  to  the  nature  of  the  examination ;  for  where 
credit  has  been  given  on  the  strength  of  the  debtor's 
representations,  it  is  no  hardship  for  him  to  be  required 
to  answer  fully  as  to  the  disposition  he  has  made  of  his 
property ;  especially  is  this  true,  if  there  is  any  evidence 
of  fraud  or  of  an  attempt  to  conceal  his  property  to  pre- 
vent his  creditor  from  getting  his  pay.  The  remedy  is 
summary,  and  should  be  sufficiently  broad  to  enable  the 
creditor  to  collect  his  judgment,  if  the  debtor  has  any 
property  which  ought  to  be  applied  to  the  payment 
thereof.  The  examination  should  be  allowed  to  take  a 
Avide  and  searching  range,  both  as  to  the  parties  to  the 
proceedings  and  to  witnesses.  (Lathrop  v.  Clapp,  40 
N.  Y.  328).      The  language  of  the  statute  is  that  the 


SUPPLEMENTARY    PROCEEDINGS.  561 

judgment  debtor  or  other  person  shall  attend  and  "  be 
examined   concerning  his  property."      This   language 
means  that  he  shall  answer  fully  concerning  his  prop- 
erty, and  not  partially.     If  the  examination  could  not 
be  full  and  complete  as  to  the  property  of  the  debtor, 
the  proceeding  would  be  worse  than  useless.     The  very 
object  of  the  examination  is  to  give  the  creditor  the 
benefit  of  a  discovery  as  to  the  debtor's  property;  and 
for  this  purpose,  the  legislature  has  said  that  the  cred- 
itor may  have  such  discovery,  and  may  inquire  into  all 
fraudulent  conveyances  or  transfers  made  by  the  debtor, 
or  as  to  any  secret  or  fraudulent  concealment  thereof; 
and  the  intention  is  clear  that  the  fullest  scope  was 
meant  to  be   given  to  ferret  out  fraudulent  transfers  of 
property.      {Lathrop  v.   Clapp,  supra).      It  is  an  im- 
portant and  wholesome  object  of  the  examination  to  dis- 
cover whether  or  not  fraud  has  been  perpetrated;  and 
the  creditor  has  such  a  right  in  regard  to  the  property  of 
his  debtor,  that  he  is  entitled  to  be  as  fully  and  fairly 
informed  in  relation  to  it,  as  the  debtor  himself  is ;  and 
an  inquiry  by  him  to  that  extent,  ought  not  to  be  pre- 
vented, or  deemed  impertinent  or  meddlesome.     While 
it  is  a  proceeding  partaking  very  much  of  the  nature  of 
a  fishing  suit — which  suits  are  not  regarded  with  favor — 
still  a  full  and  fair  examination  is  not  unfair  to  a  dis- 
honest debtor,  and  certainly  not  to  an  honest  one ;  and  a 
creditor  should  not  be  regarded  as  on  a  fishing  excursion 
when  he  takes  steps  to  enforce  his  legal  rights.     ( Clapp 
V.  Lathrop,  23  How.  Pr.  423,  443;  affd.,  40  N.  Y.  328). 
In  case  the  property  is  not  the  property  of  the  debtor, 
but  belongs  to  a  third  person,  and  is  claimed  by  such 
third  person,  that  question  cannot  be  decided  in  these 
proceedings;  the  title  can  only  be  tried  in  an  action 
brought  for  that  purpose;  and  the  proper  practice  in 
such  a  case,  is  for  the  creditor  to  apply  for  the  appoint- 
ment of  a  receiver  of  the  debtor's  property,  and  such 
receiver  may  bring  an  action  against  the  person  claim- 
ing to  own  the  property,  and  in  such  action  the  question 
of  title  can  be  tried.     ( Grounse  v.  Whipple,  34  How.  Pr. 
333).     But  a  witness,  on  the  examination,  cannot  stop 
36 


502  PRACTICE. 

llic  rxaiiiiiialioii  by  slating  that  the  property  .sought  to 
be  reached  belongs  to  him.  {t^andforil  v.  Carr,  2  Abb. 
Pr.  402;  Mcvh.  d-  Tnnlrrs'  Haul-  v.  Jfrnlci/,  14  Wk.  Dig. 
120).  An  examination  may  be  had  iu  the  city  court  of 
!Xew  York,  although  such  court  has  no  equitable  juris- 
diction to  reach  the  proi)erty,  if  fraudulently  disposed 
of.  {^'<c/uu'idcr  v.  Alt  man,  8  Civ.  Proc.  liep.  242).  The 
same  privilege  from  arrest,  and  all  the  rights,  privileges 
and  disabilities  which  by  law  belong  to  a  witness  when 
testifying  on  a  trial  or  in  an  action,  belong  to  such  wit- 
ness when  testifying  in  these  jDroceedings,  except  that 
the  examination  is  not  limited  to  issues;  but  is  inquisi- 
torial in  its  nature.  [Sandford  v.  Carr,  2  Abb.  Pr.  402; 
see  vol.  I,  p.  499,  et  seq. ) .  It  has  been  held  that  a  com- 
mission to  take  testimony  without  the  state  cannot  be 
had  in  these  proceedings  {t'hampVui  v.  Stodart,  04  How. 
Pr,  378) ;  but  this  case  was  decided  prior  to  the  amend- 
ment of  section  888  of  the  code,  by  which  it  is  provided 
that  a  commission  may  be  issued  iu  special  proceedings. 
(See  vol.  II,  p.  40). 

As  the  examination  is  taken  orally,  great  liberality 
should  be  allowed  to  correct  mistakes.  {Corning  v. 
TooJx-er,  5  How.  Pr.  10).  A  witness  cannot  be  punished 
as  for  contempt,  for  refusing  to  subscribe  to  his  testi- 
mony, which  has  been  taken  down  incorrectly.  (Sher- 
ivood  V.  Dolcn,  14  Hun,  191).  A  referee  should  allow 
proper  corrections  to  be  made  at  any  time  during  the 
examination.     (Corning  v.  Tooker,  supra). 

Where  a  deposition  which  the  witness  is  required  to 
sign  would  subject  him  to  a  legal  liability  not  otherwise 
existing,  he  will  not  l)e  required  to  sign  it.  {Marx  v. 
Spa  Hiding,  43  Hun,  305). 

By  stipulation,  the  parties  may  agi'ce  to  have  the  testi- 
mony taken  by  a  stenographer;  and  if  so  taken,  they 
may  also  stipulate  that  the  testimony  of  the  witnesses  so 
taken  and  copied  out  by  the  stenographer,  need  not  be 
signed  by  the  witnesses.  Such  course  often  saves  un- 
necessary delay;  but  there  should  always  be  a  stipula- 
tion clearly  expressing  such  intention,  if  it  is  desired  to 
take  that  course. 


SUPPLEMENTARY    PROCEEDINGS.  563 

Subdivision  2. — How  Witness  Compelled  to  Testify. 

A  party  or  a  witness,  examined  in  a  supplementary 
proceeding-,  is  not  excused  from  answering-  a  question, 
on  the  ground  that  his  examination  will  tend  to  convict 
him  of  the  commission  of  a  fraud;  or  to  prove  that  he 
has  been  a  party  or  privy  to,  or  knowing  of,  a  convey- 
ance, assignment,  transfer  or  other  disposition  of  prop- 
erty for  any  purpose;  or  that  he  or  another  person 
claims  to  be  entitled  as  against  the  judgment  creditor, 
or  a  receiver  appointed  or  to  be  appointed  in  the  special 
proceeding,  to  hold  property,  derived  from  or  through 
the  judgment  debtor,  or  to  be  discharged  from  the  pay- 
ment of  a  debt  which  was  due  to  the  judgment  debtor, 
or  to  a  person  in  his  behalf.  But  an  answer  cannot  be 
used  as  evidence  against  the  person  so  answering,  in  a 
criminal  action  or  criminal  proceeding.  (Co.  Civ.  Proc. 
§  2460). 

The  last  sentence  of  the  section  just  quoted,  means 
that  the  examination  shall  not  be  used  as  evidence  of 
any  fact  testified  to  therein ;  and  where  a  part  of  the 
evidence  introduced  upon  the  trial  of  an  indictment  for 
obtaining  goods  by  false  representations,  was  the  testi- 
mony given  by  tlie  defendant  on  examination  in  supple- 
mentary proceedings,  and  such  testimony  was  objected 
to  on  the  ground  specified  in  that  section,  it  was  held  to 
be  error,  as  it  came  directly  within  the  prohibition  of  the 
statute;  and  a  judgment  of  conviction  on  such  evidence 
was  reversed.  (Barher  v.  People,  IT  Hun,  366).  Also 
upon  the  trial  of  an  indictment,  charging  one  with  hav- 
ing conveyed  his  property  with  intent  to  defraud  his 
creditors,  the  evidence  given  by  the  defendant  in  supple- 
mentary proceedings  cannot  be  read,  and  if  so  read,  w^ill 
be  ground  for  a  reversal.  (Loomis  v.  People,  19  Hun, 
601).  Before  the  amendment  of  1881,  such  evidence 
could  not  be  used  against  a  person  so  testifying  either  in 
a  criminal  or  civil  action;  but  by  that  amendment  the 
word  "  civil  "  was  stricken  out ;  so  that  now  the  evidence 
may  be  used  against  the  person  testifying,  in  a  civil 
action.  {Dusenhnry  v.  Dusenhnrij,  63  How,  Pr.  8-49; 
Wright  v.  Xostrand,  94  N.  Y.  31,  41). 


5G4  PRACTICE. 

The  answer  of  a  party  or  a  witness  examined  in  these 
proceedings,  must  be  under  oath.  (Co.  Civ.  Proc.  § 
2444).  The  extent  of  the  inquiry  is,  in  a  great  measure, 
left  to  the  good  sense  of  the  officer  who  conducts  it. 
(Le  Roy  v.  Ealseij,  1  Duer,  589 ) .  The  judgment  debtor 
is  not  entitled  to  a  cross-examination ;  but  he  is  entitled 
to  counsel  as  to  the  form  of  his  answers,  and  to  help  him 
frame  them  {Corning  v.  Tooker,  5  How.  Pr.  16) ;  but  it 
is  discretionary  with  the  judge  or  referee,  whether  or 
not  a  witness,  other  than  a  party,  will  be  allowed  the 
benefit  of  counsel.  {Schwab  v.  Cohen,  13  N.  Y.  St.  Rep. 
709).  An  attorney  may  be  required  to  testify  in  these 
proceedings;  but  he  cannot  be  compelled  to  disclose  in- 
formation he  has  acquired  while  acting  in  the  capacity 
of  attorney  or  counsel ;  although  the  information  so 
acquired  relates  to  the  commission  of  a  fraud.  {Bacon 
V.  Frishie,  80  N.  Y.  399).  A  judgment  debtor  may  be 
compelled  to  testify  as  to  when  and  where  he  lost  money 
by  gambling,  and  the  names  of  the  winners.  {Steinhart 
y.  Farrell,  3  K.  Y.  St.. Rep.  292). 

Subdivision  3. — Effect  of  Refusal  to  Testify,  and  of 
Other  Contempts. 

A  person  who  refuses,  or  without  sufficient  excuse 
neglects,  to  obey  an  order  of  a  judge  or  referee,  made  in 
said  proceedings,  and  duly  served  upon  him,  or  an  oral 
direction,  given  directly  to  him  by  a  judge  or  referee,  in 
the  course  of  the  special  proceeding ;  or  to  attend  before 
a  judge  or  referee,  according  to  the  command  of  a 
subpoena,  duly  served  upon  him;  may  be  punished  by 
the  judge,  or  by  the  court  out  of  which  the  execution 
was  issued,  as  for  a  contempt.     (Co.  Civ.  Proc.  §  2457). 

The  judge  who  makes  the  order,  has  full  power  out  of 
court,  to  punish  for  contempt.  {Shepherd  v.  Dean,  13 
How.  Pr.  173;  Lathrop  v.  Cla^h  40  N.  Y.  328).  So  has 
a  justice  of  the  supreme  court  at  special  term.  {People 
ex  rel.  Kearney  v.  Kelly,  22  Hoav.  Pr.  309) .  The  section 
expressly  states  that  the  judge  who  makes  the  order,  or 
the  court  out  of  which  the  execution  issued,  may  punish 
for  contempt.      This  settles  a  point  somewhat  contro- 


SUPPLEMENTARY    PROCEEDINGS.       •  565 

verted,  as  to  whether  or  not  the  court  had  such  power  in 
these  proceedings.  The  proceedings  to  punish  for  con- 
tempt must,  however,  be  conducted  in  the  county  in 
which  the  suplementary  proceedings  were  instituted,  or 
in  the  judicial  district  embracing  such  county,  though 
based  upon  a  judgment  of  the  supreme  court  recovered 
in  another  district.  (Matter  of  Backus^  91  App.  Div. 
266). 

A  court  of  record  has  power  to  punish  by  fine  and 
imprisonment,  or  either,  a  neglect  or  violation  of  duty 
or  other  misconduct  by  which  a  right  or  remedy  of  the 
party  to  a  special  proceeding  may  be  defeated,  impaired, 
impeded  or  prejudiced,  where  such  act  or  neglect  is  by  a 
party  to  the  proceeding,  or  any  other  person,  in  dis- 
obedience to  a  lawful  mandate  or  order  of  the  court ;  or 
by  a  person  subpoenaed  as  a  witness,  for  refusing  or 
neglecting  to  obey  the  subpoena  to  attend,  or  to  be 
sworn  or  to  answer  as  a  witness.     (Co.  Civ.  Proc.  §  14). 

The  proceedings  to  punish  for  contempt  are  regulated 
by  the  code  (§§  2266-2292)  ;  and  are  the  same  as  in  any 
other  action  or  proceeding ;  and  need  not  be  treated  of  in 
this  place.  Where  the  testimony  of  a  witness  is  ma- 
terial in  a  proceeding  to  punish  a  judgment  debtor  for 
contempt  on  account  of  a  violation  of  the  injunction 
order,  the  judgment  creditor  is  not  entitled  to  an  order 
under  section  885  of  the  code  appointing  a  referee  to 
take  the  testimony  of  such  witness,  as  such  testimony 
can  be  compelled  under  the  provisions  of  section  2280. 
[Peo'ple  ex  rel.  Tuell  v.  Paine,  92  App.  Div.  303). 

It  is  a  contempt  for  the  judgment  debtor  to  refuse  to 
attend  at  the  time  and  place  designated  by  the  judge,  or 
by  the  referee,  where  the  order  gives  the  referee  the 
power  and  authority  to  appoint  a  time  and  place.  It  is 
the  duty  of  the  debtor  to  obey  such  order  or  direction. 
(Redmond  v.  Goldsmith,  2  Law  Bull.  19) .  Where,  how- 
ever, the  party  required  to  appear  cannot  comply  with 
the  order,  and  shows  that  fact,  he  will  not  be  punished 
for  contempt.  (Myers  v.  Trimble,  3  E.  D.  Smith,  607). 
Nor  will  he  be  punished  where  his  failure  to  obey  the 
order  was  occasioned  by  the  acts  of  the  adverse  party 
(McCartan  v.  Yan  Syckel,  10  Bosw.  694) ;  nor  where  the 


5GG  I'KACTICE. 

oMiissioii  to  euiMi)ly  was  aceideutal,  and  not  iiiti'iitioiial. 
{Uaziird  v.  Caswell,  8  Wk.  Dig.  41121.  But  in  order  to 
avoid  liability  upon  the  i;Toiind  that  tlu'  disobedience 
Avas  accidi'iital  or  luiinteiitioual,  the  judgment  debtor 
should  show  that  he  honestly  intended  to  conform  to  the 
order.  (Id.  i.  If  such  inability  was  occasioned  by  some 
act  of  the  party  himself,  it  will  not  be  an  excuse;  but 
will  be  of  .itself  considered  a  contempt.  {People  ex  rel. 
Day  V.  licrf/cii,  53  X.  Y.  404).  False  swearing  before  the 
referee  cannot  be  punished  as  a  contempt.  {Jicrnlicimcr 
V.  Kclleher,  31  Misc.  464).  An  order  which  adjudges 
a  judgment  debtor  guilty  of  contempt  in  refusing  to 
answer  proper  questions,  "  such  failure  and  refusal  be- 
ing his  evasive  and  contumacious  conduct  in  testifying  " 
and  which  does  not  adjudge  that  any  right  or  remedy 
of  the  judgment  creditor  has  been  impaired  thereby,  is 
fatally  defective.  {Matter  of  lijian.  73  App.  Div.  137). 
In  order  to  constitute  contempt  on  the  part  of  the  judg- 
ment debtor  for  interfering  with  his  property,  it  must  be 
shown  affirmatively  that  the  property  w'as  acquired 
prior  to  the  gTanting  of  the  order,  or  to  its  service 
{Potter  V.  Low,  16  How.  Pr.  549;  Rainsford  V.  Temple, 

3  Misc.  294)  ;  and  that  it  was  not  exempt  under  section 
2463  of  the  code.  {Hancock  v.  Xcar,s,  93  X.  Y.  79). 
AMiere  it  is  shown  that  the  debtor  has  transferred  prop- 
erty liable  to  execution,  in  violation  of  the  order  of  the 
court,  he  may  be  punished.  {Deposit  Xatl.  Bank  v. 
Wick/ianij,  44  How.  Pr.  421).  Payment  of  the  rent  of 
the  debtor's  place  of  business  is  such  a  violation. 
{Aschemoor  v.  Emm  vert,  5  Law  Bull.  80).  The  legal 
title  of  the  property  transferred,  in  violation  of  an  in- 
junction, must  have  been  in  the  judgment  debtor  or  the 
person  enjoined,  at  the  time  of  the  service  of  the  order, 
in  order  to  constitute  contempt.  {Beard  v.  ^nook,  47 
Hun,  158 ;  Dean  v.  Hyatt,  5  AVk.  Dig.  67) .  It  is  not  con- 
tempt for  the  judgment  debtor  to  confess  judgment  in 
favor  of  another  bona  fide  creditor,  unless  there  is  a 
special  clause  in  the  injunction  order  forbidding  it 
{Lansiny  v.  Easton,  7  Paige,  364;  McCredie  V.  Senior, 

4  Paige,  378)  ;  but  where  the  confession  of  judgment  is 
evidently  with  the  intention  of  depriving  the  creditor  of 


SUPPLEMENTARY   PROCEEDINGS.  567 

his  lien,  it  is  a  violation  of  the  injunction,  and  is  a  con- 
tempt. {LaiiShiuj  V.  Easion,  siipru).  Eents  accruing 
under  an  existing-  lease  are  not  after-acquired  property 
and  are  within  the  restriction  of  the  injunction  {Lertora 
y.  Rcimunn,  53  N.  Y.  Supp.  921;  Stevens  V.  Dewey,  13 
App.  Div.  312)  ;  and  it  is  a  violation  of  the  injunction 
for  the  judgment  debtor,  the  lessee  of  real  property,  to 
cause  his  subtenant  to  pay  rent  direct  to  the  owner  of 
the  fee.  {Browning  v.  Chad  wick,  30  Misc.  420).  The 
following  acts  on  the  part  of  an  enjoined  judgment 
debtor  have  also  been  held  to  be  violations  of  the  order : 
paying  out  money  received  from  the  sale  of  goods  in  the 
regular  course  of  business  {Frince  v.  Brett,  21  App. 
Div.  190)  ;  even  though  a  portion  of  such  money  resulted 
from  personal  services  (Mulford  v.  Gihhs,  9  App.  Div. 
490)  ;  withdrawing  from  a  savings  bank  money  stand- 
ing in  his  name  as  trustee  at  the  time  of  the  service  of 
the  order  (Jackson  v.  2Iurray,  25  App.  Div.  140)  ;  using 
money,  deposited  in  his  name  as  agent,  in  a  bank  ac- 
count over  which  he  individually  had  control  (Harvey  V. 
Arnold,  84  App.  Div.  133)  ;  making  a  general  assign- 
ment for  the  benefit  of  creditors.  (Cauda  v.  Oollner, 
73  Hun,  493).  He  is  not,  however,  obliged  to  stop  pay- 
ment of  checks  given  in  good  faith  and  for  value  before 
the  service  of  the  order  (Fitzgibhons  v.  Smith,  16  N.  Y. 
Supp.  410)  ;  nor  is  he  guilty  of  contempt  in  endorsing 
over  to  the  true  owner  a  check  received  by  him  and 
payable  to  his  order,  but  in  which  he  has  no  interest. 
(Rhodes  v.  Linderman,  17  N.  Y.  Supp.  628).  And  a 
sale  of  jewelry  by  a  judgment  debtor  after  a  suspension 
of  the  examination  for  three  years  was  held  no  con- 
tempt.    (Meyers  v.  Herbert,  64  Hun,  200). 

To  authorize  the  court  or  a  judge  to  punish  a  party 
for  refusing  to  pay  over  money  or  property  in  pursuance 
of  its  order,  it  must  appear  that  the  specific  property  or 
sum  of  money  was,  at  the  time  of  the  service  of  the 
order,  in  his  possession,  or  under  his  control.  (Tinker 
V.  Crooks,  22  Hun,  579).  Title  to  property  cannot  be 
determined  upon  an  application  to  punish  for  contempt. 
(Holmes  V.  0' Regan,  68  App.  Div.  318;  Matter  of 
Becker,  36  Misc.  322).      Where  an  order  requiring  a 


568  PRACTICE. 

third  person  to  pay  the  judgment  creditors  money  due 
from  such  third  person  to  the  judgment  debtor,  should 
not  have  been  granted,  the  third  person  sliould  not  be 
punished  for  refusing  to  pay,  unh'ss  he  has  shown  disre- 
spect to  the  court  in  the  manner  in  which  he  refuses  to 
obey  the  order.  {Bcehc  v.  Kcnyon,  3  Hun,  73).  Where 
the  order  does  not  direct  the  payment  to  be  made  to  the 
receiver,  the  debtor  should  not  be  punished  for  a  refusal 
to  pay  to  such  receiver.  {M^utson  v.  Fitzsimmons,  5 
Duer,  G29). 

The  person  applying  for  the  punishment  of  the  judg- 
ment debtor  or  other  person  for  contempt,  should  show 
that  he  has  some  interest  in  the  subject  matter,  or  that 
he  has  a  right  to  prosecute  him  for  the  misconduct  or 
other  injury  complained  of.  [Eaicley  V.  Bennett,  4 
Paige,  1G5).  The  failure  of  the  judgment  debtor  to  ap- 
pear upon  the  adjourned  day,  although  the  adjournment 
was  made  in  his  absence  and  no  written  notice  was 
served  on  him,  is  a  contempt  for  which  he  may  be  pun- 
ished. {Parker  v.  Hunt,  15  Abb.  Pr.  410,  note) .  But  if 
the  order  requiring  him  to  appear  is  void,  for  want  of 
jurisdiction,  or  because  there  was  no  aflfldavit,  the  party 
will  not  be  adjudged  in  contempt  for  refusing  to  appear. 
{Kennedy  v.  Weed,  10  Abb.  Pr.  62). 

An  order  made  punishing  a  person  for  refusing  to 
answer,  may  be  appealed  from.  {Forbes  v.  Millard,  54 
Barb.  520 ) .  But  an  order  denying  a  motion  to  direct  the 
application  of  property  to  the  payment  of  the  judgment, 
and  to  punish  for  contempt,  is  discretionary,  and  is  not 
appealable.  {Joyce  v.  Holhrook,  7  Abb.  Pr.  338). 
Where  a  witness  has  appealed  from  an  order  declaring 
him  in  contempt,  he  cannot  raise  the  question  as  to  the 
regularity  of  the  execution  under  which  the  proceedings 
are  had.     {People  v.  Marsion,  18  Abb.  Pr.  257). 

If  the  party  directed  to  appear,  is  also  directed  by  the 
order,  or  a  proper  subpoena  duces  tecum,  to  produce 
books  or  papers,  and  he  refuses  to  produice  them,  if  they 
are  in  his  possession,  or  under  his  control,  he  may  be 
punished  for  the  violation  of  such  order  or  subpoena,  as 
for  a  contempt.  {MitcheU's  case,  12  Abb.  Pr.  249).  A 
corporation  nmy  be  punished  for  the  violation  of  an 


SUPPLEMENTARY   PROCEEDINGS.  569 

injunction  order,  and  may  be  fined.  {People  ex  rel. 
Mayor,  etc.,  of  N.  Y.  V.  Pendleton,  64  N.  Y.  622).  It  is 
no  excuse  for  a  refusal  to  obev  the  injunction  order,  that 
it  is  more  extensive  than  the  relief  asked ;  for  although 
the  order  may  be  irregular,  it  is  not  void,  and  so  long  as 
it  is  in  force,  it  is  the  duty  of  the  party  enjoined  to  obey 
it.  (Id.).  The  judgment  debtor  may  be  punished  for 
contempt,  although  the  violation  of  the  order  is  by  a 
third  person,  if  the  debtor  suffers  or  allows  the  act  to  be 
done,  or  it  is  done  for  his  benefit.  He  may  be  guilty  of 
violation  as  well  by  aiding  others  in  violating  the  in- 
junction as  by  violating  it  himself.  Such  orders  must 
be  honestly  and  fairly  obeyed.  [Neale  v.  Oshorne,  15 
How.  Pr.  81;  People  ex  rel.  Mayor,  etc.,  of  N.  Y.  v. 
Pendleton,  supra). 

Where  an  appeal  is  taken  from  the  order,  but  no  stay 
of  the  proceedings  is  provided  for,  the  party  enjoined  is 
bound,  notwithstanding  such  appeal,  to  obey  the  order. 
[People  ex  rel.  Day  v.  Bergen,  53  N.  Y.  404). 

Sec.    5.    Report  of  referee. 

Subdivision  1. — What  to  Contain. 

Upon  the  conclusion  of  the  examination,  the  referee 
must  certify  to  the  judge  to  whom  the  order  is  return- 
able, all  the  evidence  and  other  proceedings  taken  before 
him  (Co.  Civ.  Proc.  §  2442)  ;  if  the  order  directs  the 
referee  to  report  the  facts,  instead  of  the  evidence,  the 
evidence  should  be  certified  by  the  referee  and  filed  with 
the  report.  (Co.  Civ.  Proc.  §  2443;  Genl.  Rule  30). 
The  report  must  contain  the  oath  of  the  referee,  or  the 
express  waiver  of  it,  either  in  the  form  of  a  written 
waiver,  or  of  an  entry  in  his  minutes  that  such  waiver 
was  orally  given.  (Co.  Civ.  Proc.  §  2445).  Where  the 
testimony  is  taken  by  a  stenographer  a  copy  of  the 
minutes  as  transcribed  should  be  certified  by  the  referee. 
The  rei^ort  must  be  made  to  the  judge  before  whom  the 
proceedings  are  returnable.  (Kennedy  v.  Norcott,  54 
How.  Pr.  87;  Smith  v.  Johnson,  7  Id.  39).  Where  the 
referee  is  appointed  to  report  the  facts,  he  need  not  re- 
port the  testimony ;  but  must  report  only  his  findings  of 


570  PRACTICE. 

fact;  Iml  llic  test  iiiKtiiv,  duly  cert  iticd,  f^liuiild  be  re- 
turned with  the  report.  W  here  the  reference  is  merely 
to  take  Jiiid  i'<']MH-t  the  evidence,  the  i-eferee  should  not 
report  lindinus  of  faets;  but  he  shouhl  return  the  evi- 
dence, togethci-  w  ith  a  statement  of  all  the  ])r()ceedings 
had  before  him.  If  he  was  ii;iven  the  authority  to 
designate  the  time  at  which  the  delitor  should  appear, 
he  should  in  his  report  state  the  manner  of  desi^^nating 
the  time  and  the  notice  that  was  uiven  to  the  debtor,  and 
the  adjournments,  and  all  the  i)roceediugs  had  pursuant 
to  the  order  appointing-  him. 

Subdivision  2. — In  Casi-]  of  Contempt. 

In  case  of  the  refusal  of  the  judgment  debtor  or  other 
person  to  attend  or  to  answer  a  proper  question,  or  to 
obey  any  order  which  the  referee  had  authority  to  make, 
where  such  refusal  amounted  to  a  contempt  of  court,  if 
the  party  in  whose  behalf  the  proceedings  are  being  con- 
ducted, or  one  authorized  to  act  for  him,  requests  the 
referee  at  any  stage  of  the  proceedings,  upon  the  hap- 
pening of  such  refusal,  to  report  such  fact  to  the  judge 
or  court,  the  referee  should  nmke  a  special  repoi-t,  which 
should  contain  a  statement  of  all  the  facts  which  go  to 
show  the  contempt,  and  in  case  the  refusal  was  to  an- 
swer a  proper  (|uestion,  the  report  should  set  out  the 
question,  and,  if  necessary,  a  statement  of  the  facts 
which  will  inform  the  judge  as  to  the  pertinency  or  pro- 
priety of  the  question,  and  the  direction  by  the  referee 
that  the  witness  answer  the  (juestion,  together  with  any 
objection  that  the  witness  may  urge  as  a  reason  for  his 
refusal,  and  the  fact  of  his  refusal;  and  where  the  con- 
tempt consists  of  a  failure  to  attend,  the  report  should 
show  the  manner  in  which  he  was  required  to  attend, 
and  the  notice  or  subpoena  served  upon  him,  and  the 
alhdavit  of  the  person  serving  it;  where  the  contempt 
consists  of  the  violation  of  an  injunction  order,  evidence 
of  which  has  appeared  in  the  examination  before  the 
referee,  the  report  should  specify  in  what  manner  the 
injunction  has  been  violated.  Where  the  facts  w^hicli 
constitute  the  contemi)t  have  not  come  to  the  knowledge 


SUPPLEMENTARY    PKOCEEDINGS.  571 

of  the  rt^feree,  other  than  bv  the  affidiivit  of  the  phiiutiff 
or  his  attorney,  he  should  report  the  making  of  such  affi- 
davit, annexing  it  to  his  re^jort;  and  sucli  report  will  be 
sufficient.  [Miller  v.  Adams,  52  N.  Y.  409).  Where 
the  proceedings  have  been  conducted  before  the  judge 
who  makes  the  order,  no  report  is  necessary-,  as  he  has 
power  to  punish  summarily  any  contempt  committed  in 
his  presence ;  and  no  proof  of  the  failure  of  the  judgment 
debtor  to  attend  need  be  made,  as  the  judge  has  judicial 
knowledge  of  such  non-attendance.  (Miller  v.  Adams, 
supra). 

Subdivision  3. — Effect  of  Eeport. 

The  object  of  the  report  is  to  inform  the  judge  as  to 
the  condition  of  the  debtor's  property,  for  it  is  only 
upon  such  information  that  the  judge  may  make  a 
further  order  or  direction  in  the  premises.  Its  effect  is 
the  same  as  the  report  in  an  ordinary  reference  upon  an 
incidental  question  of  fact  in  an  action.  It  is  the  basis 
for  the  further  direction  of  the  judge,  with  regard  to 
the  property  of  the  debtor,  and  its  application  to  the 
payment  of  the  plaintiff's  judgment. 


ARTICLE  III. 

order  requiring  delivery  of  property. 

SECTION. 

1.  By  judgment  debtor  or  third  person. 

2.  By  one  indebted  to  judgment  debtor. 

3.  Duty  of  sheriff  receiving  property. 

Sec.    1.    By  judgment  debtor  or  third  person. 

Where  it  appears,  from  the  examination  or  testimony 
taken  in  a  supplementary  proceeding,  that  the  judgment 
debtor,  has,  in  his  possession  or  under  his  control,  money 
or  other  personal  property,  belonging  to  him;  or  that 
one  or  more  articles  of  personal  property,  capable  of  de- 
livery, his  right  to  the  possession  whereof  is  not  sub- 
stantially disputed,  are  in  the  possession  or  under  the 


572  PRACTICE. 

control  of  aiiollier  person;  the  judge,  by  whom  the  order 
or  warrant  was  granted,  or  to  whom  it  is  returnable, 
may,  in  his  discretion,  and  upon  such  a  notice,  given  to 
such  persons,  as  he  deems  just,  or  without  notice,  make 
an  order,  directing  the  judgment  debtor,  or  other  person, 
immediately  to  pay  the  money,  or  deliver  the  articles  of 
personal  property,  to  a  sheriff,  designated  in  the  order, 
unless  a  receiver  has  been  appointed,  oi*  a  receivership 
has  been  extended  to  the  special  proceeding,  and  in  that 
case  to  the  receiver,     (('o.  Civ.  Proc.  §  2447). 

Any  property  or  right  of  property  which  is  trans- 
ferrable,  or  survives  the  owner,  and  is  not  exempt  by 
law,  may  be  reached  by  supplementary  proceedings,  un- 
less it  belongs  to  a  domestic  corporation  or  a  foreign 
corporation  doing  business  or  having  an  agency  within 
the  state;  and  where  the  proceedings  are  brought  by  or 
on  behalf  of  the  state,  the  property  belonging  to  such 
corporations  may  be  reached.  (Co.  Civ.  Proc.  §  2463). 
The  creditor  cannot  reach,  nor  can  the  judge  compel  the 
delivery  of  property  which  is  exempt  by  law  from  levy 
and  sale  under  an  execution.  ( Id. ) .  As  to  what  prop- 
erty is  thus  exempt,  see  vol.  II,  p.  1002,  et  seq.  The 
remedy  of  the  debtor  where  exempt  property  has  been 
taken,  is  also  treated  of  in  vol.  II,  p.  1007.  An  interest- 
ing collection  of  authorities  as  to  what  property  cannot 
be  reached  in  these  proceedings  will  be  found  in  a  note 
to  the  case  of  Perkins  v.  Kendall.  (3  Civ.  Proc.  Rep. 
240,  250). 

Money  not  due  or  payable  at  the  time  of  the  service 
of  the  order  cannot  be  reached  (Albright  v.  Kempton, 
4  Civ.  Proc.  Rep.  16;  Matter  of  Trustees  of  the  Board 
of  Puh.,  etc.,  22  Misc.  645)  ;  nor  can  the  judgment  debtor 
be  ordered  to  deliver  possession  of  his  real  property. 
[First  Natl.  Bank  v.  Martin,  49  Hun,  571;  Matter  of 
First  Nat.  Bank,  52  App.  Div.  601).  The  language  of 
the  section  is  "  money  or  other  personal  property,"  and 
the  right  of  the  creditor  is  limited  by  the  code  to  the  de- 
livery of  such  money  or  other  personal  property.  ( Id. ) . 
Section  2447  does  not  apply  to  money  in  the  hands 
of  a  third  person  {Knights  of  Pythias  v.  Manhattan 
Savings  Inst.,  12  Misc.  626) ;  unless,  possibly,  in  case 


SUPPLEMENTARY    PROCEEDINGS.  573 

such  money  consists  of  specific  funds  remaining  in  pos- 
session of  such  third  person.  (Broderick  V.  Archibald, 
61  App.  Div.  473) .  Where  the  judgment  debtor  prior  to 
the  recovery  of  the  judgment  had  paid  his  wife  a  sum 
of  money  as  wages,  all  of  which  had  been  spent  by  her 
before  the  service  of  the  order  in  supplementary^  pro- 
ceedings, it  was  held  that  the  court  had  no  power  under 
section  2447  to  pay  over  the  money  so  received.     (Id.). 

There  is  some  conflict  as  to  the  right  of  the  creditor  to 
reach  the  earnings  of  the  debtor,  already  earned,  but  not 
due  or  payable  at  the  time  of  the  sei'vice  of  the  order. 
The  case  of  Thompson  v.  Nixon  (3  Edw.  Ch.  457)  holds 
that  such  earnings  may  be  reached;  but  the  case  of 
Albright  v.  Ecmpton  (4  Civ.  Proc.  Rep.  16),  holds  that 
such  earnings  cannot  be  reached ;  and  in  the  latter  case 
it  is  said  that  the  weight  of  authority  seems  to  be  that 
if  the  earnings  are  not  due  and  payable  at  the  time  of 
the  service  of  the  order,  they  cannot  be  reached.  (See, 
also,  Columbian  Inst.  v.  Cregan,  3  N.  Y.  St.  Rep.  286; 
Merriam  v.  HiU,  1  Wk.  Dig.  260 ;  McMillan  v.  Yanderlip, 
12  Johns.  165).  The  judge  has  no  power  to  make  a 
decree  or  order  appropriating  the  future  earnings  of 
the  judgment  debtor  to  the  payment  of  the  judgment. 
{Albright  v.  Kempton,  4  Civ.  Proc.  Rep.  16;  Columbian 
Inst.  v.  Cregan,  supra).  It  is  to  be  noted,  however,  that 
since  the  amendment  of  1903  to  section  1391  of  the  code, 
such  future  earnings  may  in  certain  instances  and  under 
certain  circumstances  be  reached  by  an  execution  as  in 
said  section  set  forth.  (See  vol.  II,  pp.  980-981,  1016- 
1018). 

The  rule  is  that  only  property  actually  in  the  posses- 
sion of  the  debtor,  or  of  which  he  is  entitled  to  the  im- 
mediate possession,  can  be  reached  in  supplementary 
proceedings;  and  not  prospective  property,  or  money 
not  yet  due  to  him.  The  court  in  the  case  of  Merriam 
V.  Hill  (1  Wk.  Dig.  260),  says  that  it  must  be  remem- 
bered that  the  order  in  supplementary  proceedings, 
affects  only  moneys  actually  due  at  the  time  the  order  is 
obtained,  and  does  not  apply  to  moneys  to  become  due 
on  an  executory  contract.  (Citing  Potter  v.  Loio,  16 
How.  Pr.  549;  McCormack  v.  Kehoe,  7  Leg.  Obs.  184). 


574  PRACTICE. 

The  code  provides  that  the  earniugs  of  the  judgment 
dehtor  for  the  period  of  sixty  days  befcn-e  the  service  of 
th«'  order,  if  necessary  for  the  support  of  his  family,  are 
exempt  I  Co.  Civ.  Proc.  §  240o )  ;  and  liis  earnings  after 
the  service  of  the  order  cannot  be  reached  (  Woodman  v, 
(joodcnoiigli,  IS  Abb.  Pr,  265)  ;  and  if  it  is  doubtful 
whether  the  money  was  earned  before  or  after  the  ser- 
vice of  the  order,  the  debtor  is  entitled  to  the  bentit  of 
the  doubt.  {Potter  v.  Loir,  supra}.  The  salary  of  a 
public  officer,  while  still  in  the  hands  of  the  (lisbursing 
officer,  and  not  yet  due  or  payable  to  the  debtor,  when 
the  order  is  served,  cannot  be  reached.  (  Wahlman  v. 
O'DonncU,  57  How.  Pr.  215). 

As  to  the  exemption  of  the  debtor's  earnings  for  the 
period  of  sixty  days  before  the  commencement  of  the 
proceedings,  see  art.  I,  section  2,  subd.  1,  supra. 

It  has  been  held  that  a  watch  may  be  reached,  if  it  is 
not  necessary  to  the  btisiness  of  the  debtor  (Dr posit 
Xatl.  Banl-  v.  ^yickha))l_,  U  Uow.  Pr.  421)  ;  but  if  the 
watch  is  necessary,  it  cannot  be  reached.  (Merriam  v. 
HiU,  1  Wk.  Dig.  260).  A  patent  right  can  be  reached, 
and  the  court  can  direct  an  assignment  thereof  by  the 
judgment  debtor  to  the  receiver  appointed  in  these  pro- 
ceedings. (Barnes  v.  Morr/an,  6  T.  &  C.  105).  So  also 
can  an  interest  which  the  judgment  debtor  has  in  an 
estate  as  the  next-of-kin  {Mc Arthur  v.  Hoysradt,  11 
Paige,  495)  ;  or  an  interest  in  a  partnership  business 
{^^ehh  V.  Orermann,  6  Abb.  Pr.  92)  ;  or  the  rents  and 
profits  of  real  estate  (FarnJiain  v.  CampheJl,  10  Paige, 
598)  ;  or  a  chose  in  action.  [McKee  v.  J  add,  12  N.  Y. 
622). 

The  order  should  not  be  granted  when  there  exists  a 
substantial  dispute  as  to  the  ownership  of  the  property 
{Krone  v.  Klot:,  3  Ai:>p.  Div.  587)  ;  but  where  the 
alleged  true  owner  petitions  the  court  to  determine  the 
question  of  ownership,  and  presents  proof  of  his  claim, 
he  cannot,  after  defeat,  insist  that  the  court  had  no 
jurisdiction.  (Gonrpnrlit  v.  Scott,  27  Misc.  192).  No 
notice  is  necessary  of  an  application  for  an  order  re- 
quiring the  judgment  del)toi'  to  deliver  propei-ty  to  the 
sheriff  {Herren  v.  Lotrcrrr,  3  Misc.  113)  :  but  it  seems 


SUPPLEMENTARY    PROCEEDINGS.  575 

that  if  uo  notice  is  given  tlie  eoiirt  will,  upon  an  appli- 
cation to  punish  for  contempt,  consider  aH  the  objec- 
tions Avliich  could  have  been  raiserl  to  the  granting  of  the 
order.  (Id.).  The  court  has  no  power  to  compel  the 
judgment  debtor  to  go  out  of  the  state  to  get  the  prop- 
erty which  he  is  required  to  deliver  to  the  sheriff. 
(Buchanan  v.  Uiinty  98  N.  Y.  560). 

The  order  requiring  the  payment  or  delivery  to  the 
sheriff  may  be  either  permissive,  where  the  order  is 
directed  to  a  person  or  corporation  owing  such  debtor, 
permitting  such  person  or  corporation  to  pay  a  sum  of 
money,  not  exceeding  the  amount  of  the  plaintiff's  claim 
(Co.  Civ.  Proc.  §  2446),  [which  permissive  order  is 
dealt  with  in  the  next  section]  ;  or  it  may  be  compul- 
sory, where  it  is  directed  to  the  judgment  debtor,  who 
has  money  or  property  of  his  own  in  his  possession,  or 
where  directed  to  another  person  who  has  in  his  posses- 
sion deliverable  personal  property,  the  possession  of 
which  belongs  to  the  judgment  debtor,  commanding  the 
judgment  debtor  to  pay  such  money  or  deliver  such 
property,  or  such  other  person  to  deliver  such  property 
of  the  judgment  debtor,  to  the  sheriff.  (Co.  Civ.  Proc. 
§  2447).  As  we  have  noted  heretofore,  section  2447 
empowers  the  court  to  direct  a  third  person  to  deliver  to 
the  sheriff  only  specific  personal  property;  it  does  not 
authorize  the  court  to  direct  such  person  to  pay  the 
sheriff  money  he  owes  the  judgment  debtor.  In  other 
words,  the  mandatory  order,  in  so  far  as  third  persons 
are  concerned,  relates  only  to  specific  personal  property, 
as  distinguished  from  money.  (Knights  of  Fi/thias  v. 
Manhattan  l^ars.  Inst.,  12  Misc.  626;  Broderick  \. 
Archihald,  61  App.  Div.  473). 

The  order  must  be  a  judge's  order  and  not  a  court 
order.  (Fiss  v.  Haag,  75  App.  Div.  241).  The  order 
is  entitled  in  the  special  proceeding,  the  same  as  in  any 
other  special  proceeding  before  a  judge  out  of  court. 

Sec.    2.    By  one  indebted  to  judgment  debtor. 

At  any  time  after  the  commencement  of  a  supple- 
mentary proceeding,  and  before  the  appointment  of  a 
receiver   therein,    or   the   extension    of   a   receivership 


576  PRACTICE. 

thereto,  the  judge,  by  whom  the  order  or  warrant  was 
granted,  or  to  whom  it  is  returnable,  may,  in  his  dis- 
cretion, upon  proof,  by  affidavit,  to  his  satisfaction,  that 
a  person  or  corporation  is  indebted  to  the  judgment 
debtor,  and  upon  such  a  notice,  given  to  such  persons,  as 
he  deems  just,  or  without  notice,  make  an  order,  per- 
mitting the  person  or  corporation,  to  pay  to  a  sheriff, 
designated  in  the  order,  a  sum,  on  account  of  the  alleged 
indebtedness,  not  exceeding  the  sum  which  will  satisfy 
the  execution.  A  payment  thus  made  is,  to  the  extent 
thereof,  a  discharge  of  the  indebtedness,  except  as 
against  a  transferee  from  the  judgment  debtor,  in  good 
faith  and  for  a  valuable  consideration,  of  whose  rights 
the  person  or  corporation  had  actual  or  constructive 
notice,  when  the  payment  was  made.  (Co.  Civ.  Proc. 
§  2446). 

As  we  have  seen,  a  third  person  or  corporation  cannot 
be  compelled  to  pay  directly  to  the  creditor;  but  the 
order  should  permit  the  payment  to  be  made  to  the 
sheriff  or  receiver.  {Birnhaum  V.  Thompson,  5  Law 
Bull.  30).  The  provision  is  permissive  and  not  com- 
pulsor}^  {Calkins  v.  Packer,  21  Barb.  275;  Knights  of 
Pythias  V.  Manhattan  Savings  Inst.,  12  Misc.  626; 
Broderick  v.  Archibald,  61  App.  Div.  473).  Under 
section  tw^o  hundred  and  ninety-three  of  the  code 
of  procedure,  it  was  held  that  a  payment  by  such 
third  person  or  corporation  was  not  regarded  as  a 
payment  to  the  creditor;  but  only  as  money  paid 
to  the  use  of  the  judgment  debtor.  {Calkins  v. 
Packer,  supra).  The  same  effect  is  believed  to  be 
continued  under  the  code  of  civil  procedure.  There 
was  some  dispute  under  the  former  practice  as  to  the 
effect  of  such  a  payment,  as  between  the  person  or  cor- 
poration making  it,  and  the  judgment  debtor;  but,  by 
the  last  sentence  of  the  section  above  quoted,  that  doubt 
has  been  settled;  so  that  now  such  a  paj'ment  is  a  dis- 
charge of  the  indebtedness  owing  by  such  third  person 
or  corporation  to  the  judgment  debtor,  to  the  extent 
thereof,  in  everj-  case,  whether  the  debt  is  still  owing  to 
such  judgment  debtor  or  to  a  third  person,  except  in 


SUPPLEMENTARY   PROCEEDINGS.  577 

the  one  case  of  a  transferee  of  such  debt  from  such 
debtor,  in  good  faith,  and  for  a  valuable  consideration, 
of  whose  rights  the  person  or  corporation  had  actual  or 
constructive  notice,  when  the  payment  was  made;  and 
in  that  case,  it  is  not  a  discharge  of  the  indebtedness. 
(Co.  Civ.  Proc.  §  2446).  If  such  third  person  or  corpo- 
ration has  actual  or  constructive  notice  that  the  debtor 
has  transferred  his  claim  to  a  bona  fide  holder,  the  pay- 
ment by  such  person  or  corporation,  under  the  permis- 
sive order  of  the  judge,  is  not  a  discharge  of  the  in- 
debtedness {Adams  v.  Welsh,  43  N.  Y.  Super.  Ct.  Rep. 
52 ;  Euse  v.  Quyot,  3  T.  &  C.  790 ;  Knights  of  Pythias  v. 
Manhattan  Savings  Inst.,  supra) ;  but  where  such  as- 
signee of  the  debtor  has  not  given  notice  that  the  debt 
has  been  assigned  to  him,  the  payment  is  valid,  and  is  a 
full  protection  and  defense  to  such  third  person  or  cor- 
poration against  such  assignee.  (Gibson  v.  Eaggerty, 
37  N.  Y.  555;  Kennedy  v.  Car  rick,  18  Misc.  38).  In  the 
case  of  Lee  v.  Delehanty  (25  Hun,  197),  it  would  seem, 
however,  that  this  rule  was  not  followed ;  as  in  that  case, 
the  court  held  that  a  payment  by  a  third  person,  without 
notice  of  the  assignment,  did  not  operate  as  a  discharge 
as  against  such  assignee ;  but  the  order  permitting  such 
payment  was  reversed,  and  the  assignee's  rights  were 
not  allowed  to  be  prejudiced  by  such  payment.  Where, 
it  is  evident  that  the  payment  by  such  third  person  was 
honestly  and  fairly  made,  he  should  be  protected,  as 
against  an  assignee  who  has  kept  silent  as  to  his  rights 
in  regard  to  such  indebtedness. 

Sec.    3.    Duty   of   sheriff  receiving  property. 

If  the  sheriff,  to  whom  money  is  paid,  or  other  prop- 
erty is  delivered,  pursuant  to  an  order  made  as  pre- 
scribed in  section  2446  or  section  2447,  does  not  then 
hold  an  execution  upon  the  judgment  against  the  prop- 
erty of  the  judgment  debtor,  he  has  the  same  rights  and 
powers,  and  is  subject  to  the  same  duties  and  liabilities, 
with  respect  to  the  money  or  property,  as  if  the  money 
had  been  collected,  or  the  property  had  been  levied  upon 
by  him,  by  virtue  of  such  an  execution ;  except  as  other- 
37 


578  PRACTICE. 

wise  prescribed  in  section  2449.  (Co.  Civ.  Proc.  § 
2448). 

This  section  does  not  authorize  the  sheriff  who  re- 
ceives money  on  one  execution  to  apply  it  to  the  pay- 
ment of  another  execution  in  his  hands  against  the 
plaintiff"  in  the  tirst  proceeding.  {Baker  v.  Kenworthij, 
41  N.  y.  215). 

After  a  receiver  has  been  appointed,  or  a  receivership 
has  been  extended  to  the  special  proceeding,  the  judge 
must,  by  order,  direct  the  sheriff  to  pay  the  money  or 
the  proceeds  of  the  propertj,  deducting  his  fees,  to  the 
receiver;  or  if  the  case  so  requires,  to  deliver  to  the  re- 
ceiver the  property  in  his  hands.  But  if  it  appears,  to 
the  satisfaction  of  the  judge,  that  an  order,  appointing 
a  receiver  or  extending  a  receivership  is  not  necessary, 
he  may,  by  an  order  reciting  that  fact,  direct  the  sheriff 
to  apply  the  money  so  paid,  or  the  proceeds  of  the  prop- 
erty so  delivered  upon  an  execution  in  favor  of  the  judg- 
ment creditor,  issued  either  before  or  after  the  payment 
or  delivery  to  the  sheriff;  and  a  receiver,  appointed 
pursuant  to  the  provisions  of  this  article,  may,  on  leave 
of  a  judge  having  power  to  appoint  such  receiver,  lease 
the  real  property  that  shall  come  into  his  possession  for 
such  time  as  shall  be  necessary  to  realize  money  suffi- 
cient to  satisfy  the  judgment,  with  interest  thereon  and 
costs  of  the  special  proceeding.     (Co.  Civ.  Proc.  §  2449). 

Where  monej^  is  paid,  or  property  is  delivered,  as  pre- 
scribed in  sections  2446,  2447,  2448  and  2449,  and  after- 
wards the  special  proceeding  is  discontinued  or  dis- 
missed; or  the  judgment  is  satisfied,  without  resorting 
to  that  money  or  property;  or  a  balance  of  the  money, 
or  of  the  proceeds  of  the  property,  or  a  part  of  the  prop- 
erty, remains  in  the  sheriff's  or  the  receiver's  hands, 
after  satisfying  the  judgment,  and  the  costs  and  ex- 
penses of  the  special  proceeding;  the  judge  must  make 
an  order,  directing  the  sheriff  or  receiver  to  pay  the 
money,  or  deliver  the  property,  so  remaining  in  his 
hands,  to  the  judgment  debtor,  or  to  such  other  person 
as  appears  to  be  entitled  thereto,  upon  payment  of  his 
fees,  and  all  other  sums  legally  chargeable  against  the 
same.     (Co.  Civ.  Proc.  §  2450). 


SUPPLEMENTARY   PROCEEDINGS.  579 

ARTICLE  IV. 

HOW    PROCEEDINGS   DISCONTINUED. 

SECTION. 

1.  In  what  cases  discontinuance  may  be  had. 

2.  Second  order  for  examination. 

3.  Costs  in  supplementary  proceedings. 

Sec.    1.   In  ivliat  cases  discontinuance  may  be  had. 

A  supplementary  proceeding  may  be  discontinued  at 
any  time,  upon  such  terms  as  justice  requires,  by  an 
order  of  the  judge,  made  upon  the  application  of  the 
judgment  creditor.  Where  the  judgment  creditor  un- 
reasonably neglects  or  delays  to  proceed,  or  where  it  ap- 
pears that  his  judgment  has  been  satisfied,  his  proceed- 
ings may  be  dismissed,  upon  like  terms,  by  a  like  order, 
made  upon  the  application  of  the  judgment  debtor,  or  of 
the  plaintiff  in  a  judgment  creditor's  action  against  the 
debtor,  or  of  a  judgment  creditor  who  has  instituted 
supplementary  proceedings.  Where  an  order  appoint- 
ing a  receiver,  or  extending  a  receivership,  has  been 
made,  in  the  course  of  the  special  proceeding,  notice  of 
the  application  for  an  order  speciiied  in  this  section, 
must  be  given,  in  such  a  manner  as  the  judge  deems 
proper,  to  all  persons  interested  in  the  receivership,  as 
far  as  they  can  conveniently  be  ascertained.  (Co.  Civ. 
Proc.  §  2454). 

The  proceedings  can  only  be  discontinued  by  an  order. 
A  mere  failure  to  appear  is  not  an  abandonment  of  the 
proceedings;  as  the  jurisdiction  of  the  referee  or  judge 
is  restored  by  the  subsequent  appearance  of  the  judg- 
ment debtor  without  objection  {Hawes  v.  Barr^  7  Robt. 
452)  ;  but  if  the  creditor  designedly  omits  to  attend  on 
an  adjourned  da,j,  it  amounts  to  such  an  abandonment 
as  will  authorize  the  judgment  debtor  to  make  a  motion 
to  dismiss  the  proceeding.  (Squire  v.  Young,  1  Bosw. 
690).  The  mere  neglect  of  the  creditor  to  proceed,  does 
not  ipso  facto  discontinue  the  proceeding;  but  an  order 
should  be  obtained  dismissing  the  proceeding.  {Roths- 
child V.  Gould,  84  App.  Div.  196).  So  far  as  the  appli- 
cation for  the  appointment  of  a  receiver  is  concerned, 


580  PRACTICE. 

the  proceediugs  are  not  ended  by  mere  delay.  {Burnett 
V.  Moore,  20  Misc.  518 ) .  The  absence  of  the  referee  at 
the  time  appointed  for  the  examination  does  not  termi- 
nate the  proceeding-,  but  it  may  be  continued  by  an  order 
of  the  judge,  directing  the  examination  to  proceed  at 
a  later  day.  (KeiJicn  v.  Shipherd,  16  Civ.  Proc.  Rep. 
183). 

The  pei'sons  who  may  apply  for  the  discontinuance  or 
dismissal,  are  specified  in  the  section  quoted  above.  The 
creditor  should  be  permitted  to  discontinue  at  any  time; 
the  proceeding  being  had  for  his  benefit,  it  should  not 
be  continued  longer  than  he  desires.  But  if  the  debtor, 
pending  the  proceeding,  has  become  entitled  to  any  pro- 
tection, the  court  should  require  the  discontinuance  to 
be  upon  such  terms  as  are  just.  Where  the  application 
is  made  by  the  debtor,  he  should  show,  by  affidavit  that 
the  creditor  unreasonably  neglects  or  delays  to  proceed, 
or  that  his  judgment  has  been  satisfied,  or  such  other 
proof  as  will  entitle  him  to  the  order.  The  order  is  the 
same  as  an  order  of  discontinuance,  or  dismissal  in  any 
other  special  proceeding  of  the  same  nature.  Where 
notice  is  required  to  be  given  of  such  application,  it 
should  be  given  in  the  manner  directed  by  the  judge 
before  whom  the  proceeding  is  had.  (Co.  Civ.  Proc. 
§  2454).  Where  the  proceeding  has  been  had  before  a 
referee,  it  should  not  be  discontinued  or  dismissed  be- 
fore the  report  of  such  referee.  {Kennedy  v.  Xorcott, 
54  How.  Pr.  87). 

Sec.    2.    Second   order  for   examination. 

A  second  order  to  examine  the  judgment  debtor  should 
not  be  made,  unless  it  appears  that  he  has,  since  the 
conclusion  of  the  first  examination,  acquired  property 
which  sh(mld  be  applied  in  payment  of  the  judgment,  or 
new  facts  with  reference  to  property  had  at  the  time  of 
the  former  examination,  have  come  to  the  knowledge  of 
the  creditor.  {Jurgenson  v.  Hamilton,  5  Abb.  N.  C.  149; 
Hamilton  v.  Morange,  2  Law  Bull.  58).  Facts  must  be 
proved  which  show  the  creditor  entitled  to  another 
examination.  {Irwin  v.  Chamhrrs,  40  N.  Y.  Super.  Ct. 
Rep.  432). 


SUPPLEMENTARY   PROCEEDINGS.  581 

If  the  allegation  of  subsequently  acquired  property 
is  on  information  and  belief,  and  no  grounds  of  such 
belief  are  stated,  the  order  for  a  second  examination  will 
be  vacated  on  motion.  {McGuire  v.  Schroeder,  31  Misc. 
179;  Schermerhom  v.  Otoens,  29  Misc.  674).  If  the 
first  order,  however,  was  not  followed  by  an  examina- 
tion, but  was  vacated,  it  is  not  regarded  as  unjust  to  the 
debtor  to  make  a  second  order  requiring  his  examina- 
tion. {Metliodist  Book  Con.  v.  Hudson,  1  How.  Pr. 
N.  S.  517).  And  where  the  first  proceeding  was  dis- 
missed on  account  of  the  judgment  creditor's  failure  to 
appear  on  the  adjourned  day,  and  the  judgment  debtor 
thereafter  refused  to  verify  the  testimony  already  taken, 
it  was  held  that  an  order  for  a  second  examination 
should  be  vacated  only  on  condition  that  the  judgment 
debtor  verify  such  testimony.  (TVeJss  V.  Ashman,  11 
Misc.  377).  Where  the  proceeding  on  the  former  order 
was  withdrawn  by  the  consent  of  the  debtor,  it  is  no 
bar  to  a  second  order.  [Carter  v.  Clark,  7  Robt.  43). 
But  two  orders  for  the  examination  of  the  judgment 
debtor  cannot  be  in  force  at  the  same  time.  (Gaylord 
V.  Jones,  7  Hun,  480;  Weiss  v.  Ashman,  supra).  But 
where,  through  an  irregular  adjournment,  the  referee 
has  lost  jurisdiction,  the  judge  has  power  to  make  an 
order  requiring  the  judgment  debtor  to  appear  before 
the  referee  to  the  end  that  his  examination  may  be  com- 
pleted.    [Kaufman  v.  Thrasher,  10  Hun,  438). 

Sec.    3.    Costs   in   supplementary  proceedings. 

Subdivision  1. — To  the  Judgment  Creditor. 

The  judge  may  make  an  order  allowing  to  the  judg- 
ment creditor  a  fixed  sum,  as  costs,  consisting  of  his 
witnesses'  fees  and  other  disbursements,  and  of  a  sum, 
in  addition  thereto,  not  exceeding  thirty  dollars;  and 
directing  the  payment  thereof  out  of  any  money  which 
has  come,  or  may  come,  to  the  hands  of  the  receiver,  or 
of  the  sheriff ;  or,  within  a  time  specified  in  the  order,  by 
the  judgment  debtor,  or  other  person  against  whom  the 
special  proceeding  is  instituted.  (Co.  Civ.  Proc.  § 
2455). 


582  PRACTICE. 

The  party  in  whose  behalf  the  examination  is  con- 
ducted, is  entitled  to  counsel,  and  the  fee  for  such  coun- 
sel is  a  proper  item  to  be  allowed.  [JJulsaver  v.  Wiles, 
11  How.  l*r.  44G).  The  liayment  of  the  costs  may  be 
ordered  out  of  whatever  property  is  found  applicable  to 
the  debt  {Kcarncifs  Case,  13  Abb.  Pr.  459) ;  and  costs 
are  ordinarily  made  thus  payable  instead  of  by  the  judg- 
ment debtor  personally.  {Matter  of  Thompson,  31 
Misc.  802).  The  application  for  costs  cannot  be  made 
until  the  proceedings  have  been  terminated  in  favor  of 
the  party  applying  therefor.  {Davis  v.  Turner,  4  How. 
Pr.  190).  Where  the  judgment  creditor  permits  the 
supplementary  proceedings  to  lie  dormant  and  collects 
the  entire  judgment  by  a  new  execution,  the  court  has 
no  power  thereafter  to  allow  the  creditor  his  costs  of  the 
proceedings  {Hitter  v.  Greason,  28  Misc.  656)  ;  or  in  a 
case,  where  after  the  proceedings  are  begun  but  before  an 
application  for  costs  is  made,  the  judgment  debtor  pays 
the  amount  of  the  judgment.  {Patterson  Brothers  v. 
Goorley,  14  Misc.  56).  But  w^here  the  judgment  is  col- 
lected by  a  new  execution  after  a  receiver  in  supplement- 
ary proceedings  has  been  appointed,  the  court  has  power 
to  order  the  judgment  debtor  to  pay  the  receiver  the 
amount  of  his  fees  and  also  the  costs  previously  awarded 
to  the  judgment  creditor,  and  such  order  may  be  en- 
forced by  contempt  proceedings.  {Holton  v.  Robinson, 
59  App.  Div.  45;  appeal  withdrawn,  167  N.  Y.  616). 
Unless  there  is  a  stipulation  that  the  evidence  shall  be 
taken  by  a  stenographer,  his  fees  are  not  taxable  as 
costs  in  these  proceedings.  {Matter  of  the  Toicn  of 
Hempstead,  36  App.  Div.  321 ;  see  vol.  II,  pp.  637-638, 
673). 

The  section  provides  the  manner  of  collecting  the 
costs,  which  is  by  an  order  allowing  them  to  the  judg- 
ment creditor ;  and  for  a  refusal  to  obey  such  order  the 
party  refusing,  is  liable  to  be  proceeded  against  for  con- 
tempt. (Co.  Civ.  Proc.  §  24.57).  It  has  been  held  that 
the  costs  mentioned  in  the  section  above  quoted,  cannot 
be  collected  by  execution.  {Yaliente  v.  Bryan,  3  Civ. 
Proc.  Rep.  358). 


SUPPLEMENTARY    PROCEEDINGS.  583 

Subdivision  -2. — To  the  Judgment  Debtor  or  Third 

Person. 

Where  the  judgment  debtor,  or  other  person  against 
whom  the  special  proceeding  is  instituted,  has  been  ex- 
amined, and  property  applicable  to  the  payment  of  the 
judgment  has  not  been  discovered  in  the  course  of  the 
special  proceeding,  the  judge  may  make  an  order,  allow- 
ing him  a  like  sum  as  costs ;  and  directing  the  payment 
thereof,  within  a  time  specified  in  the  order  by  the  judg- 
ment creditor;  or,  except  where  it  is  allowed  to  the  judg- 
ment debtor  out  of  any  money  that  has  come,  or  may 
come,  to  the  hands  of  the  receiver  or  of  the  sheriff.  ( Co. 
Civ.  Proc.  §2456). 

A  party  examined  as  a  witness  is  entitled  to  the  usual 
witness  fees.  (Vol.  II,  p.  676).  The  section  above 
quoted,  does  not  provide  for  costs  in  favor  of  the  judg- 
ment debtor  on  the  dismissal  of  the  proceedings  without 
examination ;  but  it  is  limited  to  where  he  has  been  ex- 
amined. (Simms  v.  Frier ^  2  Law  Bull.  97).  But  this 
limitation  does  not  apply  to  motion  costs  allowed  the 
judgment  debtor  upon  gTanting  an  order  dismissing  the 
proceedings  for  a  defect  in  the  affidavit  upon  which  they 
were  instituted.  (Hutson  v.  Weld,  38  Hun,  142).  A 
non-resident  judgment  creditor  cannot  be  compelled  to 
give  security  for  the  costs  of  these  proceedings.  {First 
Nat.  Bank  v.  Yates,  21  Misc.  373).  It  was  held  even 
before  the  present  code,  that  where  the  examination  was 
continued  for  a  long  time  against  a  third  person,  al- 
though no  property  was  found,  it  Avas  proper  to  allow 
costs.  {Anon.  11  Abb.  Pr.  108).  The  section  above 
quoted,  expressly  states  that  costs  should  be  allowed  in 
such  a  case,  whether  the  examination  was  against  a 
third  person,  or  against  the  judgment  debtor;  as  it 
serves  as  a  wholesome  restraint  against  a  creditor's 
harrassing  such  person  when  he  has  no  property  with 
which  to  meet  the  judgment. 


584  PRACTICE. 

ARTICLE  V. 

THE    RECEIVER. 
SECTION. 

1.  When  and  by  wlioni  appointed. 

2.  Application  for  the  order. 

3.  The  order. 

4.  Security  to  be  given  by  receiver. 

5.  What  property  vests  in  receiver. 

0.  When  title  of  receiver  extends  back  by  relation. 

7.  Extending  receivership. 

S.  Control  of  court  over  receiver. 

Sec.    1.    Wlien  and  by  whoiu  appointed. 

At  any  time  after  making  an  order,  requiring  the 
judgment  debtor  or  any  other  person,  to  attend  and  be 
examined,  or  issuing  a  warrant,  as  prescribed  in  these 
proceedings,  the  judge  to  whom  the  order  or  warrant  is 
returnable  may  make  an  order,  appointing  a  receiver  of 
the  property  of  the  judgment  debtor.  (Co.  Civ.  Proc. 
§  2464). 

While  the  appointment  can  be  made  at  any  time  after 
the  order  for  an  examination  has  been  obtained  {People 
ex  rel.  Fitch  v.  Mead,  29  How.  Pr.  360) ;  yet  it  cannot  be 
made  until  that  has  been  done.  {Holhrook  v.  Orgler, 
40  N.  Y.  Super.  Ct.  Rep.  33).  Under  the  code  of  proce- 
dure there  was  no  authority  for  the  appointment  of  a  re- 
ceiver in  a  proceeding  for  the  examination  of  a  third 
party  who  was  alleged  to  have  property  of,  or  to  be  in- 
debted to,  the  judgment  debtor;  but  a  receiver  could  be 
appointed  only  in  a  proceeding  instituted  for  the  exam- 
ination of  the  judgment  debtor  himself.  [Morgan  v. 
Yon  Kohnstamm,  60  How.  Pr.  161).  As  will  be  seen 
by  the  section  cited  above,  that  rule  has  now  l)een 
changed ;  and  a  receiver  may  be  appointed,  although  the 
examination  is  of  a  third  person. 

Any  judge  who  has  jurisdiction  to  make  the  order  for 
an  examination  under  section  2434  of  the  code  has  the 
power  to  appoint  a  receiver  in  proceedings  begun  before 
him  {Eyatt  v.  Diisenhury,  5  N.  Y.  St.  Rep.  846)  ;  but  the 
order  appointing  a  receiver,  can  only  be  made  by  the 
judge  who  made  the  order  for  the  examination  [Smith 


SUPPLEMENTARY    PROCEEDINGS.  585 

V.  Johnson,  7How.  Pr.  39;  Ball  v.  Goodenough,  37  How. 
Pr.  479)  ;  or  by  the  judge  before  whom  the  order  or  war- 
rant is  made  returnable.  (Co.  Civ.  Proc.  §  2434;  see 
art.  I,  sec.  3,  supra ) . 

The  power  to  appoint  a  receiver  is  given  to  the  par- 
ticular judge,  and  not  to  a  judge,  or  any  judge.  {Mer- 
ritt  V.  Slocmn,  6  How.  Pr.  350;  Smith  v.  Johnson, 
supra).  A  creditor  has  not  an  absolute  right  to  have  a 
receiver  appointed;  but  it  is  discretionary  with  the 
judge  in  all  cases  whether  that  will  be  done,  or  the  credi- 
tor will  be  required  to  pursue  his  remedies  in  a  judg- 
ment creditor's  action.  {Bollard  v.  Taylor,  33  N.  Y. 
Super.  Ct.  Rep.  496).  The  motion  for  a  receiver  will  be 
denied  where  it  appears  that  the  judgment  debtor  has  no 
property,  or  only  property  exempt  from  execution  {Mat- 
ter of  Edlunds,  35  Hun,  367;  Gibncij  v.  Reilly,  26  Misc. 
275)  ;  or  where  it  appears  upon  the  examination  that 
the  only  property  of  the  debtor  is  his  interest  in  a  trust 
fund  which  would  not  pass  to  the  receiver,  and  in  cer- 
tain judgments  against  the  creditor,  which  the  judgment 
debtor  offered  to,  and  was  willing  to  set  off  against  the 
judgment  recovered  against  him.  {De  Camp  v.  Denip- 
sey,  10  Civ.  Proc.  Rep.  210).  While  it  is  discretionary 
with  the  judge  whether  or  not  to  make  the  appointment, 
and  it  may  be  denied  when  there  is  no  property,  yet  it  is 
almost  a  matter  of  course  to  make  the  appointment ;  and 
the  fact  that  no  property  has  been  discovered  upon  the 
examination,  which  may  be  applied  to  the  payment  of 
the  judgment,  will  not  necessarily  be  a  suflicient  ground 
to  deny  the  application  for  a  receiver.  {Myer's  Case,  2 
Abb.  Pr.  476;  De  Camp  v.  Dempsey,  supra;  Dease  v. 
Reese,  39  Misc.  657).  Where  property  has  been  dis- 
covered, which  the  judgment  debtor  has  refused  to 
apply  to  the  payment  of  the  judgment,  it  is  a  matter 
of  course  to  make  the  appointment.  {Hoyt  v.  Mann, 
7  N.  Y.  St.  Rep.  420,  per  Daniels,  J. ;  Ormes  v.  Baker, 
17  Wk.  Dig.  104).  It  was  held  in  Heroy  v.  Gihson  (10 
Bosw.  591)  that  the  creditor  was  entitled  to  have  a 
receiver  appointed,  although  the  only  property  dis- 
covered was  real  estate  which  might  have  been  sold  upon 
an  execution ;  and  an  order  denying  the  motion  to  ap- 


586  PRACTICE. 

point  a  receiver  was  reversed.  It  may  be  doubted 
whether  that  case  would  be  valid  in  view  of  the  later 
decisions.  {Bunu  v.  Daly,  24  Hun,  526;  Albany  City 
Xat.  Bank  v.  Gay  nor,  67  How.  Pr.  421,  and  cases  cited). 
The  rule  usually  is  that  where  it  appears  that  the  debtor 
has  real  estate,  which  may  be  sold  upon  the  execution, 
the  creditor  must  resort  to  that  remedy  in  order  not  to 
deprive  the  debtor  of  his  right  to  redeem.  In  Bailey  v. 
Lane  (15  Abb.  Pr.  373,  note)  it  was  held  that  it  was 
proper  to  appoint  a  receiver,  although  the  only  property 
discovered  was  an  equity  of  redemption  of  the  debtor  in 
the  real  estate,  which  he  was  willing  to  apply  upon  the 
judgment.  T\'here  it  appears  that  property  has  been 
placed  by  the  debtor  in  the  hands  of  third  persons,  or 
there  are  conflicting  claims  to  property  a  receiver  is  a 
matter  of  right.  (Onnes  v.  Baker,  17  Wk.  Dig.  104; 
Todd  V.  Crooke,  4  Sand.  694).  Where,  upon  the  ex- 
amination, it  appeared  that  the  judgment  debtor  had  an 
estate  in  land  as  tenant  by  the  curtesy,  but  it  was  not 
shown  that  an  execution  had  been  issued  upon  the  judg- 
ment, and  returned,  since  that  estate  was  acquired,  it 
was  held  that  a  receiver  should  not  be  appointed;  but 
that  the  creditor  should  issue  an  execution  to  sell  the 
estate.  [Bunn  V.  Daly,  24  Hun,  526).  When  a  receiver 
is  appointed,  it  must  be  of  the  property  of  the  judgment 
debtor,  generally;  it  is  not  proper  to  appoint  a  receiver 
of  specific  property  or  of  particular  debts.  (Andreios  v. 
Glenville  Woolen  Co.,  11  Abb.  Pr.  N.  S.  78).  Where 
an  order  for  the  examination  of  the  judgment  debtor 
was  irregular,  and  not  sufficient  of  itself  to  give  juris- 
diction, yet  if  the  judgment  debtor  voluntarily  appears 
under  it,  and  submits  himself  to  an  examination  before 
a  referee,  such  appearance  gives  jurisdiction  to  the 
judge,  and  an  order  appointing  a  receiver  founded  upon 
it,  is  valid.  (Bingham  v.  Dishroiv,  37  Barb.  24).  If  the 
judge  has  jurisdiction  to  make  the  appointment,  only 
the  judgment  debtor  can  attack  the  order  for  irregu- 
larity. ( Underwood  V.  Sutclife,  10  Hun,  453 ;  revd.  on 
another  point,  77  N.  Y.  58;  Baker  v.  Brundage,  79  Hun, 
382).  If  the  notice  of  motion  to  appoint  a  receiver  has 
been  given,  and  the  judgment  debtor  appears  before  the 


SUPPLEMENTARY    PROCEEDINGS.  587 

judge,  and  makes  no  objection  to  the  appointment,  he 
thereby  waives  all  objections  to  the  regularity  of  the 
proceedings.  (Tyler  v.  Willis,  33  Barb.  327;  Moore  v. 
Empie,  17  App.  Div.  218).  Where  the  judgment  has 
been  paid  pending  the  examination  a  receiver  will  not 
be  appointed  for  the  sole  purpose  of  enabling  the  attor- 
ney for  the  judgment  creditor  to  recover  his  costs  of 
the  proceedings,  not  previously  allowed.  {Pater son 
Brothers  v.  Goorley,  14  Misc.  56).  A  receiver  of 
partnership  assets  will  not  be  appointed  where  one  of 
the  partners  has  made  a  separate  composition  with  the 
judgment  creditor  under  section  1942  of  the  code. 
{Hunter  v.  Hunter,  67  App.  Div.  470). 

An  order  appointing  a  receiver,  or  denying  a  motion 
to  appoint  a  receiver,  is  appealable  {Dollard  v.  Taylor, 
33  N.  Y.  Super.  Ct.  Kep.  496;  i?ero^  v.  Gibson,  10  Bosw. 
591),  subject,  however,  to  the  provisions  of  section  2433 
of  the  code.  {Moschell  v.  Boor,  66  Hun,  557;  see  subd. 
5  of  section  6  of  art.  I,  ante). 

Sec.    2.    Application  for  the  order. 

Subdivision  1. — Notice  of  the  Application. 

At  least  two  days'  notice  of  the  application  for  the 
order  appointing  a  receiver,  must  be  given  personally  to 
the  judgment  debtor,  unless  the  judge  is  satisfied  that 
he  cannot,  with  reasonable  diligence,  be  found  within 
the  state ;  in  which  case,  the  order  must  recite  that  fact, 
and  may  dispense  with  notice,  or  may  direct  notice  to  be 
given  in  any  manner  which  the  judge  thinks  proper. 
But  where  the  order  to  attend  and  be  examined,  or  the 
warrant,  has  been  served  upon  the  judgment  debtor,  a 
receiver  may  be  appointed  upon  the  return  day  thereof, 
or  at  the  close  of  the  examination,  without  further  notice 
to  him.      (Co.  Civ.  Proc.  §  2464). 

The  judge  must  ascertain,  if  practicable,  by  the  oath 
of  the  judgment  debtor,  or  otherwise,  whether  an  action, 
specified  in  article  1  of  title  4  of  chapter  XV  of  the 
code,  or  a  supplementary  proceeding,  is  pending  against 
the  judgment  debtor.  If  either  is  pending,  and  a  re- 
ceiver has  not  been  appointed  therein,  notice  of  the 


588  PRACTICE. 

application  I'or  the  appointment  of  a  receiver,  and  of  all 
the  subsequent  proceedings  respecting  the  receivership, 
niiist  be  given,  in  such  a  manner  as  the  judge  directs,  to 
the  judgment  creditor  prosecuting  it.  (Co.  Civ.  Proc. 
§  2465  f. 

Tlie  code  of  procedure  did  not  in  terms  require  notice 
of  the  application  for  the  appointment  of  a  receiver  to 
be  given  to  the  judgment  debtor;  but  it  was  held  that 
the  appointment  would  not  be  made  without  notice, 
although  the  debtor  was  a  non-resident,  ( Vandeburg  v. 
Gaylord,  7  Wk.  Dig.  136;  Whitney  v.  ^¥elsh,  2  Abb. 
N.  C.  442).  Under  the  code  of  procedure  it  was  not 
unusual  to  give  verbal  notice  at  the  close  of  the  exami- 
nation before  the  referee,  of  an  application  to  the  judge 
who  issued  the  order,  for  the  appointment  of  a  receiver; 
but  it  was  finall}'^  held  that  such  notice  was  not  suffi- 
cient; and  that  a  w^ritten  notice  must  in  all  cases  be 
given.  {Ashley  v.  Turner,  22  Hun,  226).  Of  course, 
notice  may  be  dispensed  with  as  provided  in  section 
2464.  Where  upon  making  the  order  for  the  examina- 
tion, and  as  a  part  of  such  order,  the  judgment  debtor 
is  directed  to  appear  before  the  judge  at  a  time  stated, 
subsequent  to  the  examination  "  for  further  order  in 
the  premises"  it  is  a  sufficient  notice;  and  a  receiver 
may  be  properly  appointed  at  that  time.  (Sickels  v. 
Hanley,  4  Abb.  N.  C.  231).  The  last  clause  of  section 
2464  would  seem  to  apply  to  cases  where  the  proceedings 
are  had  before  the  judge  who  makes  the  order;  and  in 
such  case  a  receiver  may  be  appointed  at  the  time  of  the 
completion  of  the  examination,  and  without  further 
notice.  (Groot  v.  Greeley,  5  Law  Bull.  69).  Where  a 
motion  has  been  noticed  to  vacate  an  order  appointing 
a  receiver  upon  the  ground  that  personal  notice  of  the 
application  had  not  been  given  to  the  judgment  debtor, 
the  judgment  creditor  may,  after  receiving  notice  of 
motion,  serve  a  notice  that  in  the  event  of  the  vacating 
of  the  original  order,  a  motion  would  be  made  on  behalf 
of  the  plaintiff  for  the  appointment  of  a  receiver;  and 
thereupon  the  judge  before  whom  the  motion  is  made, 
has  jurisdiction  to  make  the  appointment.  {Clark  v. 
Clark,  11  Abb.  N.  C.  333). 


SUPPLEMENTARY    PROCEEDINGS.  589 

The  action-  mentioned  in  section  2465  is  a  judgment 
creditor's  action.  (See  chapter  LVIII,  supra).  The 
notice  required  under  section  2465  may  be  less  than 
eight  days;  the  application  is  not  a  motion  under  sec- 
tion 780  of  the  code  of  civil  procedure.  {Leggett  v. 
Sloan,  24  How.  Pr.  479).  Where  other  creditors  have 
commenced  other  proceedings  supplementary  to  execu- 
tion, they  are  entitled  to  notice  of  the  application  for  a 
receiver.     {Todd  v.  Crooke,  4  Sand.  694). 

Inability  to  find  the  judgmen-t  debtor  with  reasonable 
diligence  within  the  state  must  be  shown  by  affidavit, 
and  if  such  inability  is  stated  on  information  and  belief, 
the  gTOunds  of  such  belief  must  be  given,  or  the  order 
will  be  vacated  on  motion  {Henry  v.  Furhish,  30  Misc. 
822)  ;  but  a  recital  in  the  order  that  the  judgment  debtor 
could  not  be  found  is  conclusive  as  against  collateral 
attack.  {Gomprecht  v.  Scott,  27  Misc.  192).  Service 
on  the  attorneys  of  record  in  the  action  in  which  the 
judgment  was  recovered,  is  insufficient.  {Catholic 
Univ.  V.  Conrad,  27  Misc.  326).  Great  delay  on  the 
part  of  judgment  creditors  who  have  instituted  prior 
proceedings  does  not  dispense  with  the  necessity  of 
notice  to  them.     {Barnett  v.  Moore,  20  Misc.  518). 

Subdivision  2. — What  Papers  Required  on  Applica- 
tion. 

The  report  of  the  referee  and  the  testimony  taken, 
should  be  presented  to  the  judge,  but  no  copy  need  be 
served  on  the  judgment  debtor.  Creditors,  although 
they  may  be  entitled  to  notice  of  the  motion  for  the 
appointment  of  the  receiver,  are  not  entitled  to  service 
of  a  copy  of  the  examination  which  has  been  had. 
{Todd  V.  "^ Crooke,  4  Sand.  694).  If  the  facts  which  the 
judge  is  required  to  ascertain  by  section  2465,  do  not 
appear  from  the  depositions  taken,  they  should  be  shown 
by  an  affidavit.  Such  affidavit  should  be  served  with 
the  notice  of  motion. 

If  any  other  facts  are  show^n  by  affidavit,  that  affidavit 
should  also  be  served  with  the  notice. 


590  PRACTICE. 

Sec.    3.    The  order. 

Subdivision  1. — Form  and  Contents. 

The  order  appointing  a  receiver  is  a  judge's  order; 
and  it  must  be  signed  by  the  judge.  (Ball  v.  Good- 
enough,  37  How.  Pr.  479;  Smith  v.  Johnson,  7  How.  Pr. 
39 ) .  It  should  recite  the  proceedings  which  have  been 
had ;  it  should  apoint  the  receiver ;  and  it  should  fix  the 
amount  of  his  bond,  and  the  number  of  sureties,  if  more 
than  two  are  required.  It  is  usual  to  direct  the  judg- 
ment debtor  to  convey  the  real  estate  and  deliver  and 
assign  the  personal  property.  But  such  directions  for 
conveyance  or  assignment  are  entirely  unnecessary  as 
all  property,  both  real  and  personal,  is  vested  in  the 
receiver  by  an  order  appointing  a  receiver  when  it  is 
properly  recorded  and  the  appointment  is  completed. 
(Co.  Civ.  Proc.  §  2468;  First  Natl  Bank  v.  Martin,  49 
Hun,  571 ;  Spencer  v.  Berdell,  45  Hun,  179 ;  Manning  v. 
Evans,  19  Hun,  500).  It  is  better  to  omit  any  unneces- 
sary directions. 

It  is  proper,  although  unnecessary,  to  insert  in  the 
order  a  provision  restraining  the  judgment  debtor  from 
disposing  of  or  interfering  with  his  property.  The 
order  appointing  a  receiver,  which  is  made  by  a  court 
or  a  judge  authorized  to  make  it,  is  presumed  regular 
until  annulled  in  a  direct  proceeding;  and  if  the  order 
recites  facts  giving  jurisdiction,  it  is  prima  facie  evi- 
dence of  the  existence  of  those  facts.  {Wright  v.  ISlos- 
trand,  94  N.  Y.  31,  32).  If  costs  are  allowed  in  these 
proceedings  under  section  2455,  they  should  be  fixed  by 
the  order;  and  the  receiver  may  be  authorized  to  pay 
them  out  of  any  funds  that  may  come  into  his  hands. 

Subdivision  2. — Filing  and  Recording  the  Order. 

An  order  appointing  a  receiver,  or  extending  a  re- 
ceivership, must  be  filed  in  the  office  of  the  clerk  of  the 
count}',  wherein  the  judgment  roll  in  the  action  is  filed; 
or,  if  the  special  proceeding  is  founded  upon  an  execu- 
tion issued  out  of  a  court,  other  than  that  in  which  the 
judgment  was  rendered,  in  the  office  of  the  clerk  of  the 


SUPPLEMENTARY   PROCEEDINGS.  591 

county,  where.in  the  transcript  of  the  judgment  is  filed. 
(Co.  Civ.  Proc.  §  2467). 

Each  county  clerk  must  keep  in  his  office  a  book,  in- 
dexed to  the  names  of  the  judgment  debtors,  styled 
"  book  of  orders  appointing  receivers  of  judgment 
debtors."  A  county  clerk,  in  whose  office  an  order  or  a 
certified  copj-  of  an  order  is  filed,  as  prescribed  in  sec- 
tion 2467  or  section  2468  of  the  code,  must  immediately 
note  thereupon  the  time  of  filing  it,  and,  as  soon  as 
practicable,  must  record  it,  in  the  book  so  kept  by  him. 
He  must  also,  upon  request,  furnish  forthwith  to  any 
party  or  person  interested,  one  or  more  certified  copies 
thereof.  For  each  omission  to  comply  with  any  provi- 
sion of  this  section,  a  county  clerk  forfeits,  to  the  party 
aggrieved,  two  hundred  and  fifty  dollars,  in  addition  to 
all  damages  sustained  by  reason  of  the  omission.  (Co. 
Civ.  Proc.  §  2470). 

Filing  the  order  in  the  proper  clerk's  office  is  neces- 
sary, to  vest  in  the  receiver  the  title  to  personal  prop- 
erty; and  recording  in  the  proper  office,  is  necessary 
before  the  title  to  real  property  passes.  ( Co.  Civ.  Proc. 
§  2468).  The  filing  and  recording  should  be  made 
without  delay  after  the  appointment.  If  the  land  is 
situated  in  the  county  in  which  the  judgment  debtor 
resides,  it  is  only  necessary  that  the  original  order  be 
filed  and  recorded.  The  filing  and  recording  of  a  certi- 
fied copy  in  addition,  is  not  necessary.  {Fredericks  v. 
Niver,  28  Hun,  417).  Where  the  land  is  situated  in  a 
county  other  than  that  of  the  judgment  debtor's  resi- 
dence, the  filing  of  a  certified  copy  in  the  county  clerk's 
office  of  the  county  where  the  land  is  situated  is  neces- 
sary in  order  to  vest  the  title  in  the  receiver.  ( Co.  Civ. 
Proc.  §  2468,  subd.  1).  The  filing  and  recording  of  the 
order  is  a  condition  precedent  to  the  vesting  of  title  in 
the  receiver.  (Dubois  v.  Cassidy,  75  N.  Y.  298).  The 
order  need  only  be  recorded  in  the  office  of  the  county 
clerk,  and  not  in  the  register's  office.  {Wright  v. 
Nostrand,  47  N.  Y.  Super.  Ct.  Kep.  441;  revd.  on  another 
point,  94  N.  Y.  31).  Where  the  judgment  debtor  lives 
in  the  county  in  which  the  order  is  made,  if  personal 


592  PRACTICE. 

property  alone  is  sought  to  be  reached,  the  order  need 
only  be  filed,  and  it  is  not  necessary  to  record  it. 
{Wright  v.  Nostrand,  94  N.  Y.  31). 

Sec.    4.    Security  to  be  given  by  receiver. 

Under  the  code  of  procedure,  no  provision  was  made 
for  requiring  sureties  of  a  receiver  in  supplementary 
proceedings,  and  it  was  held  that,  if  security  was 
required  by  the  order,  the  appointment  was  not  com- 
plete until  the  security  was  given,  but  that  a  bond  with 
sureties  was  dispensed  with  if  the  order  did  not  in  terms 
require  it.  {Banks  v.  Potter,  21  How.  Pr.  469).  It  was 
further  held,  however,  in  that  case,  that,  although  sure- 
ties were  not  required,  yet  the  receiver  must  in  all  cases 
give  his  personal  bond.  By  the  code  of  civil  procedure, 
however,  a  receiver,  appointed  in  an  action  or  special 
proceeding,  must,  before  entering  upon  his  duties, 
execute  and  file  Avith  the  proper  clerk,  a  bond  to  the 
people,  with  at  least  two  sufficient  sureties,  in  a  penalty 
fixed  by  the  court,  judge,  or  referee,  making  the  appoint- 
ment, conditioned  for  the  faithful  discharge  of  his 
duties  as  receiver;  and  the  execution  of  any  such  bond 
by  any  fidelity  or  surety  company  authorized  by  the 
laws  of  this  state  to  transact  business,  shall  be  equiva- 
lent to  the  execution  of  said  bond  by  two  sureties.  And 
the  court,  or,  where  the  order  was  made  out  of  court,  the 
judge  making  the  order,  by  or  pursuant  to  Avhich  the 
receiver  was  appointed,  or  his  successor  in  office,  mnj, 
at  any  time  remove  the  receiver,  or  direct  him  to  give  a 
new  bond,  with  new  sureties,  Avith  the  like  condition. 
But  the  foregoing  provisions  of  this  section  do  not  apply 
to  a  case  where  special  provision  is  made  by  law,  for  the 
security  to  be  given  by  a  receiver,  or  for  increasing  the 
same,  or  for  removing  a  receiver.  A  receiver  who,  hav- 
ing executed  and  filed  a  bond  as  provided  for  in  this 
section,  before  presenting  his  accounts  as  receiver,  must 
give  notice  to  the  surety  or  sureties  on  his  official  bond, 
of  his  intention  to  present  his  accounts,  not  less  than 
eight  days  before  the  day  set  for  the  hearing  on  said 
accounting.      The  same  notice  must  be  given  to  such 


SUPPLEMENTARY   PROCEEDINGS.  593 

surety  or  sureties  where  the  accounting  is  ordered  on 
the  petition  of  a  person  or  persons  other  than  the  re- 
ceiver, and  in  no  case  shall  the  receiver's  accounts  be 
.passed,  settled  or  allowed,  unless  the  said  notice  pro- 
vided for  in  this  section  shall  have  first  been  given  to  the 
surety  or  sureties  on  the  official  bond  of  such  receiver. 
(Co.  Civ.  Proc.  §  715). 

The  appointment  of  the  receiver  is  not  complete  so 
that  the  title  of  the  estate  of  the  judgment  debtor  vests 
in  him,  until  the  bond  required  by  the  order  has  been 
filed.  {Johnson  v.  Martin,  1  T.  &  C.  504).  Where 
the  receiver  has  given  ample  security  in  the  first  ap- 
pointment it  is  not  necessary  to  require  new  security  of  * 
him  upon  extending  the  receivership  to  another  action. 
{Banks  V.  Potter,  21  How.  Pr.  469).  A  bond  means  an 
instrument  under  seal ;  and  one  without  a  seal  is  irregu- 
lar; but  the  defect  is  not  jurisdictional  {Hyatt  v.  Dusen- 
hury,  5  N.  Y.  St.  Rep.  846)  ;  and  it  can  only  be  taken 
advantage  of  by  the  judgment  debtor  {Morgan  V.  Potter, 
17  Hun,  403) ;  if  there  has  been  an  attempt  to  comply 
with  the  order  by  filing  the  bond  although  it  is  irregular. 
See,  also,  on  this  subject  vol.  I,  p.  713. 

Sec.    5.   AVliat  property  vests  in  the  receiver. 

The  property  of  the  judgment  debtor  is  vested  in  a 
receiver,  who  has  duly  qualified,  from  the  time  of  filing 
the  order  appointing  him,  or  extending  his  receivership, 
as  the  case  may  be ;  subject  to  the  following  exceptions : 

1.  Real  property  is  vested  in  the  receiver,  only  from 
the  time  when  the  order,  or  a  certified  copy  thereof,  as 
the  case  may  be,  is  filed  with  the  clerk  of  the  county 
where  it  is  situated. 

2.  Where  the  judgment  debtor,  at  the  time  when  the 
order  is  filed,  resides  in  another  county  of  the  state,  his 
personal  property  is  vested  in  the  receiver  only  from  the 
time  when  a  copy  of  the  order,  certified  by  the  clerk  in 
whose  office  it  is  recorded,  is  filed  with  the  clerk  of  the 
county  where  he  resides.     (Co.  Civ.  Proc.  §  2468). 

By  the  perfected  appointment,  after  filing  and  record- 
ing the  order  and  completing  the  bond,  all  the  property 
38 


594  PRACTICE. 

real  and  personal  and  rights  of  action  of  the  judgment 
dehtor  which  he  has  at  the  time  of  the  commencement 
of  the  supplementary  proceedings  vests  in  the  receiver. 
{First  jS'atl.  Bank  v.  Martin,  49  Hun,  571;  Sayles  v., 
NaTjlor,  5  N.  Y.  St.  Rep.  816;  Matter  of  Wilds,  6  Abb. 
N.  C.  307).  The  title  to  real  property  passes  without  a 
conveyance.  {^Viug  v.  Disse,  15  Hun,  190;  ^ayles  v. 
Xaijlor,  supra;  cases  cited,  section  3,  supra).  Scott  v. 
Elmore  (10  Hun,  68),  to  the  contrarj-^  is  overruled.  The 
title  which  he  acquires  to  real  property  is,  however,  a 
qualified  one,  in  the  nature  of  security  for  the  judgment 
creditor,  and  does  not  divest  the  judgment  debtor  of  his 
'legal  title;  and  the  receiver  acquires  no  title  whatever 
by  filing  a  copy  of  the  order  appointing  him  in  the 
county  in  which  the  land  is  situated  unless  the  judg- 
ment creditor  has  obtained  a  lien  upon  the  land  by 
docketing  the  judgment  in  such  county,  and  has  ex- 
hausted his  legal  remedy  by  execution  against  the  prop- 
erty. {Faneuil  Hall  Nat.  Bank  v.  Bussing,  147  N.  Y. 
665).  He  acquires  hj  his  appointment  no  right  to  sell 
such  real  property.  His  interest  therein  is  merely  the 
right  to  take  possession  of  the  property  for  the  purpose 
of  satisfying  the  judgment,  and  is  subject  to  be  termi- 
nated by  a  sale  of  the  property  under  execution  and  a 
delivery  of  the  deed  to  the  purchaser,  or  by  the  expira- 
tion of  the  ten  years  during  which  the  judgment  is  a 
lien  on  the  property.  {Chadeajjne  v.  Gmyer,  83  App. 
Div.  403).  The  receiver  is  entitled  to  collect  the  rents 
of  such  real  property.  {Vermont  Marble  Co.  v.  Wilkes, 
30  X.  Y.  Supp.  381).  But  in  ^yhyte  V.  Denike  (53  App. 
Div.  425)  where  the  receiver  had  obtained  a  judgment 
setting  aside  as  fraudulent  a  deed  made  by  the  judg- 
ment debtor,  it  was  held  that  the  court  had  no  power  as 
against  the  vendee  to  compel  the  tenant  of  the  property 
to  attorn  to  the  receiver,  inasmuch  as  the  judgment 
setting  aside  the  deed  made  the  original  judgment 
(under  which  the  receiver  was  appointed)  a  lien  on 
the  land.  Where,  however,  the  judgment  debtor  con- 
veys his  real  property  to  the  receiver  in  obedience 
to  an  order,  the  effect  is  to  vest  the  entire  legal 
title  in  the  receiver;  the  only  right  remaining  in  the 


SUPPLEMENTARY   PROCEEDINGS.  595 

judgment  debtor  is  the  right  to  call  the  receiver  to 
account,  which  right  passes  to  the  executors  of  the  judg- 
ment debtor.  {Graham  v.  Lawyers  Title  Ins.  Co.,  20 
App.  Div.  440).  In  any  case,  the  receiver  only  takes 
the  same  interest  that  the  judgment  debtor  had  at  the 
commencement  of  the  proceedings.  {Masten  V.  Amer- 
man,  51  Hun,  244).  Where  before  a  recovery  of  the 
judgment  upon  which  the  supplementary  proceedings 
had  been  begun,  an  action  had  been  commenced  by  the 
judgment  debtor,  and  notice  of  the  pendency  of  the 
action  had  been  filed,  the  title  of  the  receiver  is  subject 
to  the  adjudication  in  that  action;  and  a  judgment  sub- 
sequently recovered  against  the  plaintiff  in  that  action 
is  superior  to  the  title  of  the  receiver.  {Spencer  v. 
Berdell,  45  Hun,  179).  A  receiver,  however,  does  not 
take  property  acquired  by  the  judgment  debtor  after  the 
commencement  of  the  proceedings.  {Dubois  v.  Cassidy, 
75  N.  Y.  298).  A  right  of  action  in  a  personal  tort 
which  is  not  assignable,  does  not  pass.  The  receiver 
takes  an  unassigned  right  of  dower  of  a  judgment  debtor 
who  is  a  widow.  {Sayles  v.  'Naglor,  5  N.  Y.  St. 
Rep.  816).  He  takes  the  distributive  share  of  the 
judgment  debtor  as  next  of  kin  in  the  personal  estate 
of  his  ancestor,  or  a  legacy  which  has  been  bequeathed 
to  him  and  not  paid.  {O'Connor  v.  Mechanics'  Bank,  18 
N.  Y.  St.  Rep.  88 ;  54  Hun,  272 ;  revd.  on  another  ground, 
124  N.  Y.  324).  A  seat  of  the  judgment  debtor  in  the 
New  York  Cotton  Exchange  passes  to  the  receiver 
{Powell  V.  Waldron,  89  N.  Y.  328) ;  and  also  a  seat  in 
the  Consolidated  Stock  and  Petroleum  Exchange.  {Leg- 
yatt  v.  Waller,  39  Misc.  408).  Chattels  which  have  been 
mortgaged  by  the  debtor,  by  a  mortgage  that  was  not 
filed  at  the  time  of  the  service  of  the  order  for  the  ex- 
amination, pass  to  the  receiver,  free  from  the  lien  of  the 
mortgage.  {Clark  v.  Gilbert,  10  Daly,  317).  The  case 
of  Gardner  v.  Smith  (29  Barb.  68),  which  holds  to  the 
contrary,  was  decided  under  the  code  of  procedure,  and 
is  not  now  the  law.  If  a  levy  has  been  made  on  personal 
property,  before  the  commencement  of  the  proceedings, 
the  receiver  takes  subject  to  that  levy.  {Becker  v.  Tor- 
rance, 31  N.  Y.  631).     If  chattels  have  been  mortgaged 


596  PRACTICE. 

by  the  debtor  by  ;i  valid  mortgage,  and  reduced  to  pos- 
session by  the  mortgagee  before  the  commencement  of 
the  proceedings,  the  receiver  takes  the  equitable  right 
of  the  debtor,  only.  {Camphell  v.  Fish,  8  Daly,  1G2). 
But  where,  from  failure  to  file  a  chattel  mortgage,  it  is 
void  as  to  creditors,  and  the  mortgagee  takes  possession 
of  the  mortgaged  property  and  sells  the  same  under  his 
mortgage,  and  one,  Avho  was  a  creditor  at  the  time  the 
mortgage  was  given,  recovers  judgment  after  the  sale 
has  taken  place,  a  receiver  appointed  in  proceedings 
supplementarj'^  to  execution  upon  such  judgment  may 
maintain  an  action  in  equity  against  the  mortgagee  to 
set  aside  the  mortgage  and  to  recover  the  property  or  its 
value  (Stephens  v.  Ferrine,  143  N.  Y.  476;  Brunne- 
mcr  V.  Cook  and  Bcrnheimcr  Co.,  89  App.  Div.  406)  ; 
but  may  not  maintain  an  action  at  law  against  the  mort- 
gagee for  the  conversion  of  the  property.  (Stephens  v. 
Meriden  Britannia  Co.,  160  N.  Y.  178).  The  receiver 
cannot  forcibly  take  property  in  the  possession  of  third 
persons,  claiming  to  own  it,  although  it  may  belong  to 
the  judgment  debtor.  (Detcey  v.  Finn,  18  Wk.  Dig. 
558).  Where  the  property  is  covered  by  a  chattel  mort- 
gage, which  was  past  due  at  the  date  of  the  appoint- 
ment, the  judgment  debtor  will  not  be  compelled  to  de- 
liver possession  of  the  propertA'  to  the  receiver.  ( Tinkey 
V.  Langdon,  13  Wk.  Dig.  384).  Ileal  estate  which  is 
situated  outside  of  the  state,  does  not  pass  to  the  re- 
ceiver. (Smith  V.  Tozer,  42  Hun,  22).  The  judge  who 
appoints  the  receiver  cannot  order  such  real  estate  to 
be  conveyed  by  the  judgment  debtor.  (Id.).  The  rule 
under  the  code  of  procedure,  seems  to  have  been  dif- 
ferent. (Fenner  v.  Sanborn,  37  Barb.  610).  But  while 
the  judge  who  appoints  the  receiver  has  no  authority  to 
re(|uire  the  judgment  debtor  to  convey  to  him  real  estate 
situated  outside  of  the  state,  yet  the  court,  by  virtue  of 
its  general  equity  powers,  if  it  has  jurisdiction  of  the 
person  of  the  judgment  debtor,  may  require  such  con- 
veyance. (Fenner  v.  Sanborn,  supra;  Smith  v.  Tozer, 
supra:  First  Natl.  Bank  v.  Martin,  49  Ilun,  571;  but 
nee  Faneuil  Ball  Xat.  Bank  v.  Bu^siny,  147  N.  Y.  665). 
The  receiver  does  not  take  the  cause  of  action  of  the 


SUPPLEMENTARY   PROCEEDINGS.  597 

debtor,  for  a  conversion  of  property  which  is  exempt 
from  execution.  {Andrews  v.  Rowan,  28  How.  Pr.  126). 
It  was  suggested  in  Mallory  v.  Norton  (21  Barb.  424) 
that,  if  the  debtor  brought  an  action  to  recover  the  value 
of  such  property,  and  obtained  a  judgment,  it  became  a 
debt  due  to  such  judgment  debtor,  and  passed  to  the  re- 
ceiver ;  and  it  was  said  that  if  the  debtor  wished  to  keep 
the  exempt  property  exempt,  he  should  have  brought 
replevin  for  it,  and  obtained  the  precise  property;  but 
this  view  was  repudiated  in  the  case  of  Tillotson  V. 
Wolcott  (48  N.  Y.  188),  in  which  it  was  held  that  a 
judgment  recovered  by  the  debtor  for  an  unlawful  levy 
and  sale  of  exempt  property  did  not  pass  to  the  receiver ; 
and  the  proceeds  of  such  judgment  would  be  protected 
in  the  hands  of  the  judgment  debtor  for  at  least  a  suffi- 
cient time  to  enable  liim  to  again  purchase  the  exempt 
property.  The  judgment  debtor  will  not  be  required  to 
deliver  to  the  receiver  the  possession  of  real  estate  to 
which  he  has  title,  on  which  the  judgment  is  a  lien ;  the 
remedy  of  the  creditor  in  such  case  is  to  issue  an  execu- 
tion on  his  judgment,  and  sell  the  real  estate  in  the 
usual  way.  {Biuin  v.  Daly,  24  Hun,  526;  Albany  City 
Bank  v.  Gaynor,  67  How.  Pr.  421).  The  tenants  of  such 
real  property  may,  however,  be  compelled  to  pay  the 
rents  to  the  receiver.  (Vermont  Marble  Go.  v.  Wilkes, 
30  N.  Y.  Supp.  381).  The  receiver  represents  not  only 
the  debtor,  but  the  judgment  creditor  at  whose  instance 
he  was  appointed.  {Bostwick  v.  Menck,  40  N.  Y.  383; 
Kennedy  v.  Thorp,  51  Id.  174) .  He  may  bring  an  action 
to  set  aside  a  fraudulent  assignment  of  property  by  the 
debtor  {Bostwick  v.  Menck,  supra),  or  to  recover  back 
property  or  its  proceeds  fraudulently  transferred  by 
the  debtor  {Mandeville  v.  Avery,  124  N.  Y.  376) ; 
but  in  those  actions  he  stands  in  the  place  of  the 
creditor,  and  if  the  creditor  has  in  any  way  estopped 
himself  from  maintaining  such  an  action,  the  re- 
ceiver is  also  estopped.  {Kennedy  v.  Thorp,  51  N.  Y. 
174).  It  is  doubtful  Avhether  the  ijrovisions  of  chapter 
314  of  the  laws  of  1858,  now  embraced  in  Personal 
Property  Law,  §  7,  and  Real  Property  Law,  §  242  (see 
chapter  LVIII,  art.  1,  §  1,  supra),  whereby  executors, 


598  PRACTICE. 

receivers  aud  others  may  disaltiriu  and  treat  as  void 
the  fraudulent  acts  of  those  whose  estates  they  hold  in 
trust,  apply  to  receivers  in  supplementary  proceedings 
or  in  any  way  enlarge  their  powers  {Stephens  v.  Meri- 
den  Britannia  Co.,  160  N.  Y.  178) ;  and  whether  an  un- 
filed chattel  mortgage  must  necessarily  be  considered  a 
fraudulent  transfer  within  the  meaning  of  those 
statutes.  (Sheldon  v.  ]VicJcham,  161  N.  Y.  500).  In 
any  case,  the  receiver  can  only  recover  so  mtich  as  may 
be  necessary  to  pay  the  judgment  upon  which  he  was 
appointed,  and  the  expenses  of  his  trust.  (Bostwick  v. 
Menck,  40  K.  Y.  383).  A  receiver  may  also  maintain 
an  action  to  recover  back  usurious  interest  which  has 
been  paid  by  the  debtor;  and  in  such  an  action  the  judg- 
ment debtor  is  not  a  necessary  party  defendant.  {Palen 
V.  Bushnell,  18  Abb.  Pr.  301;  revd.  on  another  point, 
46  Barb.  24).  He  may  also  bring  any  suits  which  are 
necessary  to  collect  debts  which  have  been  transferred 
to  him,  and  to  protect  property  in  his  possession  as  re- 
ceiver. His  duties  are  practically  the  same  as  a  receiver 
appoin-ted  by  a  court  of  equity  in  a  judgment  creditor's 
action.  {Matter  of  Inglehart,  1  Sheld.  514;  see,  also, 
vol.  I,  p.  717 ) .  Where  the  wife  has  disposed  of  her  prop- 
erty by  a  will,  so  as  to  divest  her  husband  of  all  interest 
in  the  estate,  the  receiver  of  the  husband  has  no  such 
interest  in  the  property  as  to  entitle  him  to  contest  the 
probate  of  the  will.  {Matter  of  Brown,  47  Hun,  360). 
A  receiver  cannot  maintain  an  action  to  reach  any  sur- 
plus income  coming  to  the  judgment  debtor  under  a 
trust  created  by  a  person  other  than  the  judgment 
debtor  himself  {Levey  v.  Bull,  47  Hun,  350;  Matter  of 
Seymour,  76  App.  Div.  300)  ;  but  the  judgment  creditor 
must  himself  proceed  by  a  direct  action.  ( Id. ;  Wetmore 
v.  Wetmore,  140  N.  Y.  520).  Neither  can  a  receiver 
maintain  an  action  to  enforce  a  trust  created  for  the 
benefit  of  creditors  under  the  provisions  of  section  74 
of  the  Real  Property  Law — formerly  1  Rev.  Stat.  728, 
§  52.  {Underwood" Y.  SutcUfe,  77"  N.  Y.  58).  But 
where  the  judgment  debtor,  after  the  conveyance  men- 
tioned in  that  section,  has  fraudulently  advanced  the 
money  to  put  permanent  improvements  on  such  real 


SUPPLEMENTARY    PROCEEDINGS.  599 

estate,  the  receiver  may  maintain  an  action  to  recover 
the  amount  of  such  improvements.  {Underwood  V.  8ut-» 
cliffe,  supra;  S.  c.^,  21  Hun,  357,  360).  A  receiver  can- 
not maintain  an  action  to  recover  on  a  policy  of  insur- 
ance made  for  the  benefit  of  the  wife  of  the  judgment 
debtor  upon  his  life,  even  if  the  premiums  paid  are  in 
excess  of  five  hundred  dollars.  {Hasten  v.  Amerman, 
51  Hun,  244;  s.  c,  21  N.  Y.  St.  Rep.  222).  The  title 
acquired  by  the  receiver  in  policies  upon  the  debtor's 
life,  owned  by  the  debtor,  is  not  limited  to  their  sur- 
render value  at  the  time  of  his  appointment ;  and  if  the 
policies  are  kept  in  force  by  the  insured,  the  receiver 
is  entitled,  on  their  becoming  due,  either  by  the  expira- 
tion of  their  term  or  by  the  death  of  the  insured,  to  the 
amount  due  upon  them,  not  exceeding  the  amount  of  the 
judgment  represented  by  him.  {Reynolds  v.  Aetna  Life 
Ins.  Co.,  160  N.  Y.  635).  Where  a  receiver  is  appointed 
in  two  separate  actions  against  a  judgment  debtor,  the 
rents  of  real  property  must  be  applied  to  that  judgment 
first,  which  is  a  prior  lien  on  the  land.  It  was  held  in 
Branch  v.  Harrington  (49  How.  Pr.  196)  that  it  was 
irregular  for  the  receiver  in  supplementary  proceedings 
to  employ  the  attorney  of  the  judgment  creditor  in  the 
action ;  and  for  that  reason  a  motion  by  the  defendants 
to  set  aside  the  summons  was  granted.  But  in  a  sub- 
sequent  case  {Baker  v.  Yan  Epps,  60  How.  Pr.  79;  22 
Hun,  460)  the  decision  in  that  case  was  overruled;  and 
it  Avas  held  that  the  receiver  was  at  liberty  to  employ  the 
attorney  of  the  party  for  whose  benefit  the  proceedings 
were  instituted.  A  receiver  may  be  substituted  as  plain- 
tiff in  an  action  brought  by  the  debtor  before  his  ap- 
pointment {Matter  of  Wilds,  6  Abb.  N.  C.  307)  ;  but  it 
is  in  the  discretion  of  the  court  whether  that  substitu- 
tion will  be  allowed,  or  whether  the  receiver  will  be 
required  to  conduct  the  action  in  the  name  of  the 
original  plaintiff.  {Matter  of  Lansing,  17  Wk.  Dig. 
288).  A  receiver  should  in  all  cases  obtain  leave  of  the 
court  to  sue,  before  bringing  the  action.  (Vol.  I,  p. 
130).  As  to  the  requirements  of  securitj'  for  costs  by 
the  receiver,  see  vol.  II,  p.  525. 


coo  PRACTICE. 

In  an-action  brought  by  the  receiver,  he  must  show  a 
valid  appoiutment  as  such,  from  a  court  or  judge  having 
jurisdictiou  to  make  it.  The  production  and  proof  of 
an  order,  however,  made  by  a  court  or  judge  authorized 
by  law  to  malie  it  in  siipplementary  proceedings,  and 
reciting  the  facts  necessary  to  give  such  court  or  judge 
jurisdictiou  to  act  in  the  proceedings,  furuishes  conclu- 
sive evidence  of  the  regularity  of  such  an  order,  when 
questioned  collaterally;  and  prima  facie  evidence  of  the 
existence  of  such  necessary  facts  conferring  jurisdiction. 
(M right  V.  ^'ostrand,  94  N.  Y.  31,  45).  As  to  the  costs 
in  actions  by  or  against  receivers,  see  vol.  II,  pp.  571, 
574. 

Sec.    6.    "WTien  title  of  receiver  extends  back  by  relation. 

Where  the  receiver's  title  to  personal  property  has  be- 
come vested,  as  prescribed  in  section  2468,  it  also  ex- 
tends back,  by  relation,  for  the  benefit  of  the  judgment 
creditor,  in  ^vhose  behalf  the  special  proceeding  was 
instituted,  as  follows : 

1.  Where  an  order,  requiring  the  judgment  debtor  to 
attend  and  be  examined,  or  a  w^arrant,  requiring  the 
sheriff  to  arrest  him  and  bring  him  before  the  judge,  has 
been  served,  before  the  appointment  of  the  receiver  or 
the  extension  of  the  receivership,  the  receiver's  title  ex- 
tends back  so  as  to  include  the  personal  property  of  the 
judgment  debtor,  at  the  time  of  the  service  of  the  order 
or  warrant. 

2.  Where  an  order  or  warrant  has  not  been  served,  as 
specified  in  the  foregoing  subdivision,  but  an  order  has 
been  made,  requiring  a  person  to  attend  and  be  ex- 
amined, concerning  property  belonging,  or  a  debt  due, 
to  the  judgment  debtor,  the  receiver's  title  extends  to 
personal  property  belonging  to  the  judgment  debtor, 
wdiich  w'as  in  the  hands  or  under  the  control,  of  the  per- 
son or  corporation  thus  re(]uired  to  attend,  at  the  time 
of  the  service  of  the  order;  and  to  a  debt  then  due  to 
him  from  that  person  or  corporation. 

3.  In  every  other  case,  where  notice  of  the  application 
for  the  appointment  of  the  receiver  was  given  to  the 
judgment  debtor,  the  receiver's  title  extends  to  the  per- 


SUPPLEMENTARY    PROCEEDINGS.  601 

sonal  property  of  the  judgment  debtor,  at  the  time  when 
the  notice  ^Yas  served,  either  personally,  or  by  complying 
with  the  requirements  of  an  order,  j)rescribing  a'  sub- 
stitute for  personal  service. 

4.  Where  the  case  is  within  two  or  more  of  the  fore- 
going subdivisions  of  this  section,  the  rule  most  favor- 
able to  the  judgment  creditor  must  be  adopted. 

But  this  section  does  not  affect  the  title  of  a  purchaser 
in  good  faith,  without  notice,  and  for  a  valuable  con- 
sideration ;  or  the  payment  of  a  debt  in  good  faith,  and 
without  notice. 

5.  No  person  shall  be  appointed  a  receiver  in  this 
state  who  is  not  a  resident  thereof,  nor  shall  any  person 
continue  to  act  as  receiver  after  he  ceases  to  be  a  resi- 
dent thereof,  and  the  judgment  creditor  may  apply  to 
the  court  or  judge  that  appointed  such  receiver,  within 
thirty  days  after  said  receiver  ceases  to  be  a  resident  of 
this  state,  for  the  appointment  of  another  person  in  his 
place,  upon  such  notice  to  the  persons  interested  as  the 
court  or  judge  may  direct.     (Co.  Civ.  Proc.  §  2469). 

Although  the  receiver  is  vested  with  all  the  right,  title 
and  interest  of  the  judgment  debtor,  as  of  the  time  when 
the  preliminary  order  was  served,  he  gets  no  greater 
rights  than  his  judgment  debtor  could  enforce;  and 
when  creditors  have  under  any  authority  given  by  law, 
asserted  a  claim  to  a  debt  due  to  the  judgment  debtor, 
and  acquired  a  lien  upon  it,  before  the  lien  of  the  supple- 
mentary proceedings,  their  rights  are  superior  to  those 
of  the  receiver.  (McCorkle  v.  Herrman,  22  N.  Y.  St. 
Kep.  519;  reversed  on  another  gTOund,  117  N.  Y.  302). 
The  exception  made  by  section  2469  in  favor  of  pur- 
chasers in  good  faith  and  for  value,  extends  to  a  i)ur- 
chaser  of  promissory  notes,  even  though  past  due  {Mat- 
ter of  Clover^  154  N.  Y.  443)  ;  but  the  protection 
afforded  refers  only  to  a  purchase  or  x^ayment  made 
prior  to  the  filing  of  the  order  appointing  the  receiver. 
{Fitzpatricl-  v.  Moses,  34  App.  Div.  242).  Where,  after 
the  institution  of  supplementary  proceedings  but  before 
the  appointment  of  a  receiver  therein,  a  junior  judg- 
ment creditor,  having  a  judgment  of  a  court  not  of 
record,  issues  execution  and  sells  chattels  of  the  judg- 


602  PRACTICE. 

meiit  debtor,  without  kuowledge  of  the  peudeuey  of  such 
proceedings,  the  receiver  cannot  recover  from  him  the 
avails  of  the  execution  sale.  {Urocge  v.  Baxter,  69  App. 
Div.  5S;  affd.  without  op.,  171  N.  Y.  654).  Personal 
property  mortgaged  by  the  judgment  debtor  before  the 
order  for  the  examination  was  made,  goes  to  the  re- 
ceiver, if  the  mortgage  was  filed  after  the  service  of  the 
order  of  examination.  {Clark  v.  Gllhcrt,  10  Daly,  317). 
With  regard  to  chattel  mortgages,  not  duly  filed,  but 
filed  before  the  service  of  the  order,  see  section  5  of  this 
article,  ante.  This  section,  as  will  be  noticed,  refers 
only  to  personal  property.  It  settles  a  question  which 
was  disputed  for  a  long  time  under  the  code  of  proce- 
dure as  to  the  time  from  which  the  receiver  takes  title, 
by  establishing  the  rule  that  his  title  in  all  cases  relates 
to  the  service  of  the  order  and  not  to  the  time  of  grant- 
ing it. 

Sec.    7.    Extending  receivership. 

Only  one  receiver  of  the  property  of  the  judgment 
debtor  shall  be  appointed.  Where  a  receiver  thereof  has 
already  been  appointed,  the  judge,  instead  of  making 
the  order  prescribed  in  section  2461  of  the  code,  must 
make  an  order,  extending  the  receivership  to  the  special 
proceeding  before  him.  Such  an  order  gives  to  the 
judgment  creditor  the  same  rights,  as  if  a  receiver  was 
then  appointed  upon  his  application ;  including  the  right 
to  apply  to  the  court  to  control,  direct  or  remove  the 
receiver,  or  to  subordinate  the  proceedings  in  or  by 
which  the  receiver  was  appointed,  to  those  taken  under 
his  judgment.     (Co.  Civ.  Proc.  §  2466). 

Section  2466  above  quoted,  applies  only  to  receivers 
appointed  in  supplementary  proceedings.  Where  a 
judgment  creditor's  action  is  brought,  the  court  is  not 
compelled  by  that  section  to  appoint  as  receiver  in  that 
action  the  same  person  w^ho  is  receiver  in  the  supple- 
mentary proceedings.  (State  Bank  of  Syracuse  v.  Gill, 
23  Hun,  410).  The  judgment  debtor  should  in  all  cases 
have  notice  of  the  motion  to  extend  the  receivership. 
(Benjamin  v.  Myers,  3  N.  Y.  St.  Eep.  284).  The  re- 
ceivership cannot  be  extended  after  the  death  of  the 


SUPPLEMENTARY   PROCEEDINGS.  603 

judgment  debtor.  {Matter  of  Tribune  Association,  13 
Misc.  32G).  Mere  delay  on  the  part  of  the  creditor 
instituting  the  prior  x)roceedings  does  not  of  itself  com- 
pel the  court  to  subordinate  such  proceedings  to  those 
subsequently  begun  by  another  creditor.  (N.  Y.  Loan 
&  Improvement  Co.  v.  De  Navarro,  38  Misc.  436). 

Sec.    8.    Control  of  court  over  receiver. 

A  receiver,  appointed  as  prescribed  in  this  proceeding, 
is  subject  to  the  direction  and  control  of  the  court  out  of 
which  the  execution  was  issued.  Where  an  order  has 
been  made,  extending  a  receivership  to  a  special  pro- 
ceeding founded  upon  a  subsequent  judgment,  the  con- 
trol over,  and  direction  of,  the  receiver,  with  respect  to 
that  judgment,  remain  in  the  court  to  whose  control  and 
direction  he  was  originally  subject.  (Co.  Civ.  Proc. 
§  2471).  See,  also,  vol.  1,  p.  721.  Under  the  code  of 
procedure,  it  was  held,  that  a  county  judge  who  had 
appointed  a  receiver  in  an  action  in  the  supreme  court, 
could  accept  his  resignation  and  appoint  his  successor 
{Wing  V.  Disse,  15  Hun,  190)  ;  it  is  very  doubtful 
whether  that  case  is  correct;  and  it  is  believed  that  such 
an  action  can  only  be  taken  by  the  court  out  of  which 
the  execution  was  issued,  upon  which  the  receiver  was 
appointed.  With  the  appointment,  the  authority  of  the 
judge  ends;  the  receiver  is  thereafter  subject  to  the  con- 
trol of  the  court  in  which  the  judgment  was  obtained, 
or  if  the  judgment  was  upon  a  transcript  from  a  jus- 
tice's court,  filed  in  the  clerk's  office,  he  is  then  subject 
to  the  control  and  direction  of  the  county  court.  {Pool 
V.  Safford,  14  Hun,  369).  The  judge  cannot  make  an 
order  requiring  the  receiver  to  account.  {Pool  V. 
^afford,  supra).  The  court  has  no  power  without  per- 
sonal notice  to  the  judgment  debtor,  to  make  an  order 
directing  a  receiver  in  supplementary  proceedings  to 
apply  any  portion  of  the  funds  coming  to  his  hands  as 
such  receiver,  to  the  payment  of  judgments  other  than 
that  under  which  he  was  appointed,  or  to  which  his 
receivership  has  been  extended.  {Goddard  v.  Stiles, 
90  N.  Y.  199).  Where  a  savings  bank  has  paid  to  the 
receiver  in  supplementary  proceedings,  money  deposited 


604  PRACTICE. 

with  it  to  the  credit  of  the  judymeut  debtor  and  an- 
other, and  an  action  is  afterwards  brought  by  such  other 
person  to  recover  the  amount  of  said  deposits,  the  court 
has  no  power  to  require  the  receiver  to  indemnify  the 
bank  against  costs,  damages  or  expenses  to  which  it  may 
be  subjected  in  such  action,  or  to  pay  the  money  back. 
{Galster  v.  Sijracme  >Sai;.  Bank,  29  Hun,  594).  Where 
the  receiver  innocently  took  possession  of  a  liquor  tax 
certificate  issued  to  the  judgment  debtor,  and,  pursuant 
to  orders  of  the  court,  sold  the  same  and  distributed  the 
avails,  it  was  held  that  he  was  not  liable  for  conversion 
to  the  true  owner.  {Ochs  v.  Polihj,  87  App.  Div.  92). 
The  payment  of  the  judgment  does  not  ipso  facto  dis- 
charge the  receiver.  [Crook  v.  Findley,  60  How.  Pr. 
375).  In  Holtoii  v.  Robinson  (59  App.  Div.  45)  after 
the  judgment  had  been  collected  in  full  by  a  second 
execution  issued  after  the  appointment  of  the  receiver, 
the  court  made  an  order  fixing  the  receiver's  fees  and 
directing  the  judgment  debtor  to  pay  such  fees  to  the 
receiver  and  also  the  costs  previously  awarded  to  the 
judgment  creditor.  The  court  has  power  to  fix  the  com- 
pensation of  the  receiver;  and  in  so  doing  it  is  not  con- 
fined to  the  compensation  fixed  by  statute  for  other  trus- 
tees. {Baldt(yi,n  v.  Eazler,  34  N.  Y.  Super.  Ct.  Rep.  274; 
see  vol.  I,  p.  724). 


OENEPt^L    IISTDEX. 


A. 


ABATEMENT  OF  ACTION  OR  SPECIAL  PROCEEDING: 

none,  if  cause  of  action  or  right  to  relief  survives 

test  whether  cause  of  action  survives 

for  wrongs  to  property  rights  and  interests 

what  actions  do  not  abate 

what  actions  do  abate 

on  death  of  party  jointly  liable 

none,  by  marriage    

if  party  imprisoned  in  State  prison 

against  corporation,  by  dissolution  of 

when  court  may  order  action  abated 

none  after  verdict,  etc 

when  action  for  personal  injury  does  not  abate 

for    admeasuiement    of    dower 11 

replevin  does  iiot  abate II 

ACCOUNT: 

limitation  of  action  on 

how  alleged  in  pleading 

copy  of,  see  Bill  of  Items. 


PAGE. 

807 
808 
808 
809 
812 
811 
812 
813 
809, 824 
829 
829 
830 
102 
239 

111 
326,  351 


ACCOUNTING: 

in  action  to  dissolve  corporation. 


.Ill 


ACKNOWLEDGMENT : 

taking,  not  judicial  act 

what,  prevents  running  of  statute  of  limitations 

what,  sufficient  to  prevent  running  of  statute 

when,  must  be  in  writing  to  prevent  running  of  statute. . 

by  whom,  maj'  be  made 

amendment   of    

what  instruments  may  be  acknowledged I 

fees   for    I 

ACTION: 

may  be  tried  elsewhere  than  at  court  house,  upon  stip- 
ulation       I 

pending  in  Supreme  Court,  when  triable  at  chambers .  .     I 

may  be  noticed  for  trial  at  adjourned  terms I 

(605) 


334 

14 
90 
114 
114 
115 
787 
113 
662 


9 

9 

11 


606  INDEX. 

ACTION — (continued):  vol.       page. 

when  Supreme  Court  may  remove  to  itself I  67 

defined I  80 

forms   of,   abolished    I  80 

limitation  of,  see  Limitation  of  Action. 
parties  to,  see  Parties. 

commenced  by  sei-vice  of  summons I  189 

when  jurisdiction  acquired  in I  189 

of  replevin,  when  jurisdiction  acquired  in I  190 

when  judgment  in,  may  be   taken  without  application 

to  court I  193 

on  bond  or  undertaking,  before  whom  brought I  304 

consolidation  of,  see  Consolidation  of  Actions. 
when  court  may  direct  that  one  action  abide  event  of 

another I  307 

dismissal  for  neglect,  see  Dismissal. 
how  far  barred  by  counterclaim  in  previous  action ....     I  455 

in  what,   order  of  arrest  granted,  see  Arbest  and 
Bail. 
when  prosecution  of,  will  be  restrained  by  injunction..     I  658 

on  undertaking,  given  on  obtaining  injunction I  605 

to  foreclose  mechanic's  lien,  receiver  in I  705 

severance  of,  when  part  of  claim  admitted I  764 

abatement  of,  see  Abatement  of  Action. 
continuance  of,  see  Continuance  of  Action. 

substitution  of  party  in,  on  transfer  of  interest I  822 

distinction  between  local  and  transitory II  132 

place  of  trial  of,  brought  in  local  court,  how  changed.  . .   II    147-150 

what,  triable  by  the  court II    217-218 

costs  in,  see  Costs. 

for  the  various  different  actions,  see  the  respective 

names  thereof,  such  as  Ejectment,  Partition, 

Foreclosure  of  Mortgage,  Admeasurement  of 

DowERk  Replevin,  Waste,  Nuisance,  etc. 

for  strict  foreclosure,  see  Strict  Foreclosure. 

to  foreclose  lien,  see  Liens,  and  Mechanics  Lien. 

against  person  holding  over Ill  198 

for  timber  cut  by  trespasser Ill    199-201 

against  forcible  ejectors Ill  201 

to     annul     a     marriage,     see     Matrimonial 

Actions. 
for  divorce,  see  Matrimonial  Actions. 
to  subject  fund,  held  in  trust  for  husband,  to  pay- 
ment of  alimony    Ill  280 

by  or   against   corporation,   see   Corporation. 
against  officer  of  corporation,  see  Corporation. 
to  dissolve  or  annul  corporation,  see  Corpora- 
tion. 


INDEX.  607 

ACTION — {continued)  :  VOL.       PAGE, 

by  or  against  executors  or  administrators,  see 

Executors  and  Administrators. 
for  legacy  or  distributive  share,  see  Executors 
AND  Administrators. 
by  creditor  of  decedent  against  next  of  kin,  legatee, 

heir   or   devisee    Ill  369 

See,  also,  Decedent. 

to  establish  a  will Ill  385 

See,  also.   Will. 

for  the  construction  of  a  vpill Ill  392 

See,   also.   Will. 

to  determine  validity  of  probate  of  will Ill  395 

See,   also.   Will. 
by  judgment   creditor,   see  Judgment   Credi- 
tor's Action. 
by  or  against  unincorporated  associations  or  mem- 
bers thereof Ill  435 

See  Joint  Stock  Association. 
of  taxpayer,  to  prevent  waste,  see  Taxpayer. 
against  or   between   joint  debtors,   see  Joint 
Debtors. 
against    partner    not   sued   when   judgment    taken 

against  others Ill  466 

against  usurper  of  office  of  franchise Ill  473 

See,  also.  Usurper  of  Office. 

ADDITIONAL  ALLOWANCE: 

application  for,  after  verdict II  383 

cannot  be  given  in  special  proceedings  ordinarily II  566 

when  a  matter  of  right II  619-621 

when  a  matter  of  discretion II  622-632 

See  Costs. 

ADJOURNMENT: 

of  courts  of  record   I       4,    11 

in  absence  of  judge I     11,    12 

ADMEASUREMENT  OF  DOWER: 

history  and  nature  of  proceeding Ill  101 

what  courts  have  jurisdiction  of Ill  102 

who  may  maintain  action  for Ill  102 

widow's  right  not  barred  by  receipt  of  rent  after  hus- 
band's death Ill  102,  108 

when  oemand  of  dower  necessary  before  action Ill  102,  107 

when  action  for,  abates Ill  103 

when  may  be  had  in  action  to  compel  determination 

of  claim  to  real  property Ill  103 

who  proper  defendants  in   Ill    103-104 


608  INDEX. 

ADMEASUREMENT  OF  DOWER— (con^tnued):                  vol.  page. 

what  may  be  recovered  in  action  for Ill  104-106 

gross   sum   in   lieu  of  dower Ill  104,108 

110 

damages   for   withholding   dower Ill  104,  106 

dower   in   mortgaged   premises Ill  105 

pleadings    in    action    for Ill  107-108 

what  must  be  stated  in  complaint Ill  107 

answer,  what  to  contain Ill  107 

receiver. may  be  appointed  in  action  for Ill  108 

waste  may  be  restrained  in  action  for Ill  108 

survey  may  be  ordered  in  action  for Ill  108 

proceedings  in  action  for,  how  governed Ill  108 

action  for,  how  triable Ill  108 

verdict  in  action  for   Ill  108 

judgment  in  action  for,  how  taken  by  default Ill  108 

when  plaintiff  may  take  gross  sum Ill  108-109 

how  such  sum  ascertained Ill  109-110 

when  plaintiff  may  take  distinct  parcel Ill  111 

of  what  widow  to  be  endowed Ill  110,  113- 

115 

of   aliened   lands    Ill  110,  114 

when  to  be  free  from  lien  of  taxes Ill  114 

where  premises  mortgaged Ill  114 

where  actual  partition  cannot  be  made Ill  114-115 

where  husband's  interest  is  an  undivided  interest.  .Ill  115 

in  mines Ill  115 

interlocutory  judgment  in  action  for    Ill  110-112 

what  to  contain Ill  1 10 

when  actual  admeasurement  must  be  adjudged  in.  .Ill  111 
what  to   direct  where  property  is  vacant  or   im- 
proved   Ill  111 

when  sale  to  be  ordered  by Ill  112 

commissioners  or  referee   for Ill  112-114 

all   must  meet  together Ill  112 

acts  of  majority,  when  all  meet,  valid Ill  112 

each  must  take  oath  to  be  filed  with  clerk Ill  113 

notice  of  meeting  to  be  given Ill  113 

how  dower  to  be  admeasured  by Ill  113-114 

duty   of,    when    actual    admeasurement    cannot   be 

made Ill  113 

may  employ  surveyor   Ill  114 

report  of,  what  to  contain Ill  115-116 

must  be  acknowledged  and  filed Ill  116 

need  not  be  entered  at  length  on  minutes ....  Ill  116 

when  may  be  set  aside Ill  116 

exceptions  need  not  be  filed  to Ill  116 

fees  and  expenses  of  . Ill  116-117 


INDEX. 


609 


ADMEASUREMENT  OF  I>OWER—{conHmied)  :  vol. 

final  judgment  in  action  for Ill 

what  to  contain  after  admeasurement Ill 

what  to  contain  after  sale Ill 

referee  to  sell,  report  of Ill 

ascertainment  of  rights  and  interests  of  parties  after 

sale Ill 

sale  in  action  for,  by  what  provisions  governed Ill 

judgment  for  plaintiff  in  action  for,  enforceable  by  exe- 
cution   Ill 

stay  on  appeal    ^ Ill 

right  of  widow   after   judgment Ill 

what  liens  attach  to  lands  set  off  to Ill 

what  actions  may  be  maintained  by  widow Ill 

proceedings  for,  against  claimant  of  dower Ill 

ADMINISTRATOR: 

temporary,  when  may  sue  and  be  sued I 

See  Executors  and  Administbatoks. 
ADMISSION: 

of    service   of    papers I 

of  service  of  summons,  see  Summons. 
what  deemed  admitted  in  construction  of  pleading....     I 

in  pleading,  how  construed I 

in  pleading,  cannot  be  controverted I 

ADULTERY: 

See  Matrimoniax  Actions. 

ADVERSE  POSSESSION: 

See  Limitation  of  Action. 
ADVERTISEMENT: 

foreclosure  of  mortgage  by,  see  Foreclosure  of  Mort- 
gage. 
AFFIDAVIT: 

clerk  may  take    

of  service  of  summons,  what  must  appear  in 

for  substituted  service  of  summons,  what  must  show. . 
for  service  of  summons  by  publication,  what  must  ap- 
pear in 

how  to  be  entitled    

venue  must  be  stated  in 

name  of  deponent  must  be  stated  in 

when  more  than  one  deponent 

facts  only  to  be  stated  in 

doctrine  as  to  absolute  statements  in,  not  on  personal 

knowledge 

certain  words  necessary  in  

39 


PAGE. 
117-119 

117 
118 

118 

118 
118 

119 

119 

119-120 

119-120 

120 

185-186 

150 


290 

349 
350 
350 


19 
212 
215 

219 
252 
252 
253 
253 
253 

254 
255 


GIO 


INDEX. 


AFYIDAXIT—  [coiilinticd }  :  \ 

should  he  divided  in  paragraphs   

must  be  signed  by  deponent 

must   be    sworr    to    

what  necessary  in  jurat 

statement  of  no  previous  application  in,  when  necessary. 

requisites  of,  on  application  to  extend  time 

before  whom  taken,  within  the  State 

before  whom  taken,  without  the  State 

how   authenticated    

when    authentication    sullicient 

replying    and    opposing 

See,  also,  Deposition. 

to  obtain  order  to  show  cause  

of  service  of  papers,  other  than  summons 

when  to  be  filed 

for  extension  of  time,  must  be  served  with  order 

requisites  of,  by  surety  on  bond  or  undertaking 

for  bill  of  particulars,  what  should  state 

on  procuring  order  of  arrest 

on  procuring  warrant  of  attachment 

amendment   of    

See   the   various    actions    and    proceedings    in 
which  affidavits  are  used  under  the  respec- 
tive names  of  such  actions  and  proceedings, 
of  publication  by  printer,  what  must  contain 

AFFIDAVIT  OF  MERITS: 

when  necessary    

by  whom  made  

what  to  be  stated  in 

not  required  on  motion  to  vacate  for  irregularity 

on  motion  to  change  place  of  trial 

to  prevent  inquest,  when  to  be  served I 

AFFINITY  OF  JUDGE: 

when    disqualifies    I 

See  Judge. 

AGE  OF  CONSENT: 

action   to  annul   marriage  because  party  had  not  at- 
tained, see  INIatkimoxial  Actio.v. 

AGENT: 

limitation  of  action  by  principal,  for  neglect  of I 

must  sue  in  name  of  principal I 

when  may  sue  in  his  own  name I 

when  verification  of  pleading  may  be  made  by I 

ALIMONY: 

See  IMATRiitoNiAL  Actions. 


PAGE. 

254 
254 
255 
255 
256 
258, 293 
258 
259 
259 
259 
263 

265 
289 
291 
295 
299 
356 
505 
630 
787 


II  100-101 


256 
256 
256 
803 
156 
260 

12-14 


112 
143 
143 
340 


INDEX.  611 

AMENDMENT:     .                                                                          VOL,  page. 

of  summons  I  193 

of  notice  of  pendency  of  action I  242 

of  notice  of  appeal,  when  not  allowed    I  297 

of  defective  undertaking,  when  allowed I  303 

of  pleading,  when  may  be  made  of  course I  361 

new  causes  of  action  may  be  set  up  by I  361 

what  may  be  made  of  course I  361 

when  must  be  made  within  twenty  days I  362 

right  to  amend,  how  waived I  362 

what   is   amendment   of   course I  362 

effect  of   I  363 

amended  pleading  must  be  served I  363 

by  leave  of  court  before  trial I  364 

what  will  be  allowed I  364 

when  application  must  be  made  for I  367 

reason  for,  must  be  shown I  367 

application  for,  jnust  be  upon  notice I  367 

copy  of  proposed  pleading  must  be  served I  367,  794 

order  for,  what  should  provide          I  367 

at  trial,  who  may  grant I  368 

rules   for    I  368 

what  will  be  allowed  at  trial I  369 

what  is  material  variance I  370 

granting  of  application  for,  discretionary I  371 

terms  of  allowing    I  371 

of  pleading  after  trial,  when  allowed I  371 

may  be  made  by  appellate  court I  371 

what  will  be  allowed I  371 

after  demurrer,  see  Demurrer. 

of  technical  defects  on  motion  to  vacate  attachment.  ...      I  682 

of  olfer  of  compromise ,     I  771 

what  may  be  amended I  776 

void  proceedings  cannot  be  amended I  777 

excuse  must  be  shown  on  application  for I  778 

delay,  ground  for  refusing I  778 

no  distinction  in  granting,  between  kinds  of  action.  ...      I  778 
when  allowed  on  motion  to  vacate  proceedings  for  ir- 
regularity        I  779 

of   summons    ' I  779 

of  process  other  than  summons I  781 

of  judgment  roll,  on  offer  of  compromise I  783 

of  statement,  on  confession  of  judgment I  783 

of  judgment    I  784 

of  judgment  after  appeal I  786 

of  acknowledgments    I  787 

of   affidavits    I  787 

of  warrant  of  attachment I  788 


612 


INDEX. 


AMENDMENT—  ( continued )  :  vol. 

of  bonds  and  undertakings I 

of  cases    I 

of  commission  to  take  testimony I 

of  notice  of  appeal I 

of  orders   I 

of  petitions   I 

of    remittiturs    I 

of    returns     I 

of  shei-iff's  certificates  and  deeds I 

of  verdicts   I 

application  for,  to  whom,  and  when  made I 

terms  of  granting   I 

what  may  be  made  by  court  only I 

mode  of  making  I 

effect  of  I 

after  trial  of  issues  of  law   II 

of  statement  for  confession  of  judgment II 

of  statement  on  submission  of  controversy II 

of  defective  appeal   II 

of  pleading  in  county  court  after  appeal  from  justice's 

court II 

of  case,  see  Case  and  Exceptions. 

of  pleading  after  interlocutory  judgment  on  demurrer, 
when  time  begins  to  run II 

ANNULLING  MAERIAGE: 

See  Matrimonial  Actions. 

ANSWER: 

of  title,  within  what  time  made 

defense  of  statute  of  limitations,  must  be  set  up  in. . . . 

when  must  be  served   

amendment  of,  see  Amendment. 

sham,  may  be  stricken  out 

part  of  defense  cannot  be  stricken  out  as  sham 

general  denial  in,  cannot  be  stricken  out  as  sham 

wliat  is  sham  defense  in 

falsity  may  be   shown 

when  may  be  stricken  out  as  sham 

when   required    

no  particular  form  of,  necessary 

what  must  contain 

what  may  be  denied 

denial  in,  should  be  direct 

general  denial,  what  is 

what  may  be  proved  under 

denial  on  information  and  belief,  when  good  in 


PAGE. 

788 

790 

791 

777,791 

791 

792 

792 

792 

792 

793 

794 

794 

794 

794 

795 

272-273 

760-761 

771 

789-790 

940, 941 

960 


276 


83 
117 
235 

381 
382 
382 
382 
383 
383 
425 
426 
426 
427 
427 
428 
432 
429 


INDEX. 


613 


ANSWER—  ( continued )  : 

specific  denial,  what  is    

liow  parts  of  complaint  denied,  should  be  referred  to  in. 

denials,  "  except  as  admitted,"  etc.,  when  good 

when  allegations  in,  are  not  a  denial 

new  matter  in,  what  is 

may  be  pleaded  either  for  complete  or  partial  de- 
fense   

when  defense  of,  deemed  controverted  by  plaintiff. . 

defendant  may  interpose  all  defenses  in  one 

defenses  may  be  inconsistent  in 

when  defendant  will  be  required  to  elect 

any  defense  existing  at  time  of,  may  be  pleaded  in ... . 

partial  defenses  may  be  pleaded  in 

what  is  partial  defense 

matters  in  mitigation  of  damages  must  be  pleaded  in . . 

how  such  matters  to  be  pleaded 

when  not  regarded  as  counterclaim 

what  relief  must  be  demanded  in 

when  demurrer  may  be  joined  with 

when  objection  to  complaint  must  be  taken  by 

when  objection  waived  by 

judgment  for  plaintiff,  when  part  of  claim  admitted  by. 
when  discovery  granted  to  enable  party  to  frame ...... 

See  Counterclaim  —  Demurrer — Satisfaction — Dis- 
covery OF  Books  and  Papers. 
courts   cannot   strike  out,   for   failure   to   comply  with 

order II 

in  ejectment   Ill 

what  may  be  proved  under  general  denial Ill 

other  defenses    Ill 

in  partition  Ill 

in  actions  for  admeasurement  of  dower Ill 

in  action  for  determination  of  conflicting  claims  to  real 

property Ill 

in  action  of  replevin  Ill 

in  action  of  divorce Ill 

in    action    for    separation Ill 

in  action  by  creditor  of  decedent  against  next  of  kin  or 

legatee Ill 

in  action  by  creditor  of  decedent  against  heir  or  de- 
visee   Ill 

in  judgment  creditor's  action Ill 

in  action  to  charge  joint  debtor  not  served Ill 

in  action  against  usurper  of  office  or  franchise Ill 


page. 
430 
430 
430 
432 
434 

434 
349 
436 
436 
437 
437 
437 
438 
438 
439 
454 
456 
467 
481 
481 
764 
837 


29 
14-16 

14 
15-16 

48 
107 

179-181 
216-217 

274-275 
290-291 

375 

381 
421 

463-464 
457 


614  INDEX. 

APPEAL:                                                                                               VOL.  PAGE. 

from  order,  time  for,  how  limited I  279 

time  to  take,  cannot  be  extended I  297 

II  785 

liow  extended  by  dealii  of  party I  297 

amendment  of  notice  of   I  778,  791 

irregularity  cannot  be  corrected  by I  801 

from  order  changing  place  of  trial II  169 

from  order  settling  issues II  230 

where  postponement  of  trial  refused II  255-257 

from   order  opening  inquest    II  265 

from   order   of   reference    II  419 

costs  of,  see  Costs. 

distinction  between,  and  writ  of  error  or  certiorari.  . .    II  773-774 
every    determination    in    action    or    special    proceeding 

reviewable    by    II  774 

who  may   II  775-778 

party    cannot,    where    not    aggrieved     II  775-776 

nor  where  he  has  accepted   a   benefit  under   the   judg- 
ment or  order  appealed  from   II  775 

corporation  is  aggrieved  by  order  requiring  one  of  the 

officers  to  be  examined  before  trial,  etc II  776 

when   creditor   or   stockholder   of   corporation   may,   in 

actions  to  dissolve  it   II  776 

777-778 

when  person  aggrieved.  Mho  is  not  party,  may II  776 

when  person  said  to  be  aggrieved  by  adjudication   ....   II  776-777 

what  is  waiver  of  right  to    II  780-782 

proceedings   where   adverse   party   dies   after    order   or 

judgment II  778-779 

when,  taken  after  death  of  adverse  party II  778 

proceedings  upon  death  of  party,  pending II  778-779 

how  parties   designated   in II  779 

how  papers  on,  entitled II  780 

notice  of,  what  to  contain II  782-784 

on  appeal  from  final  judgment,  intermediate  order 

or  judgment  must  be  specified  in II  782,  783 

must  be  signed  by  attorney II  783 

how  to  be  sei-\'ed    II  788 

how  served,  it  attorney  for  adverse  party  dead  or 

removed II  788 

from  what,  may  be  taken II  784-785 

cannot  be  taken  from  judgment  or  order  entered  by 

default II  784 

nor  from  a  judgment  or  order  entered  by  consent.  .   II  784 
cannot  be  taken  from  decision  sustaining  or  over- 
ruling demurrer  II  784 

cannot  be  taken  from  order  of  judge,  imtil  entered.   II  784-785 


INDEX.  615 

APPEAL — (continued):                                                               vol.  page. 

time  to,  cannot  be  extended II  785 

time  to,   how  limited II  785-787 

when  double  time  allowed  to II  787 

when  taken  after  death  of  party  entitled  to. II  787 

what  is  a  waiver  of  right  to  object  that  it  is  not  taken 

in  time    II  787-788 

when  and  what  defects  in  taking,  may  be  amended II  789-790 

when  any  amendment  may  be  allowed II  789 

defective  service  of  notice  may  be  amended II  789 

what  amendment  of  notice  allowed II  789-790 

when  security  required  upon II  791 

in  what  actions  need  not  be  given II  791-792 

how  security  may  be  waived  by  respondent II  792 

when  the  court  may  limit  or  dispense  with  security 

upon II  792-793 

to  what  court  such  application  made II  793 

undertaking  to  perfect  appeal,  what  to  contain II  793-794 

undertaking  to  stay  proceedings II  794-804 

general   requirements    II  794-796 

must  be  filed  with  clerk II  796 

justification   of   sureties   upon II  796-797 

on  judgment  for  recovery  of  money  only II  797-799 

on  judgment  for  delivery  of  property II  799 

on  judgment  for  recovery  of  chattels II  799-800 

on  judgment  directing  a  conveyance II  800 

on  judgment  for  the  possession  of  real  property. ...   II  801-803 

on  appeal  from  judgment  of  affirmance II  803 

in  what  cases  need  not  be  given II  803 

deposit  in  lieu  of II  804 

when  new  undertaking  may  be  directed II  804-805 

when  proceedings  stayed  by II  806-808 

when  order  required  to  stay  proceedings , II  806-808 

when  court  may  discharge  levy  after II  808 

action   on   undertaking   on II  808-810 

what  may  be  reviewed  on II  810-813 

what  intermediate  orders  may  be  reviewed  on,  from  final 

judgment  or  decree II  810-813 

what  questions  may  be  raised  upon II  813-817 

judgment  appealed  from  presumed  to  be  correct II  818 

appellant  must  show  error  in  judgment  on II  817 

judgment  only  reversed  on,  for  error  in  record II  821 

judgment  affirmed  on,  unless  majority  for  reversal ....    II  822 

principles  of   determination   of II  817-822 

discretionary  order,  what  must  appear  to  reverse.   II  818 

must  be  heard  on  papers  used  in  court  below II  819 

when  record  evidence  may  be  received  on  hearing  of .   II  819 


G16  INDEX. 

APPEAL — {continued)  :                                                               VOL.  page. 
distinction  between  principles  of  determination  of, 

at  law  and  in  equity II  819-821 

error  in  admission  or  exclusion  of  evidence,  ground 

for  reversal  on II  819-820 

when  erroneous  charge  ground  for  reversal  on....   II  820-821 
what   judgment   may    be    rendered    by    appellate    court 

upon II  822-825 

upon    appeal    from    single    judgment    for    sum    of 

money II  822 

where  there  are  distinct  items  making  up  a  money 

judgment II  822-823 

judgment  may  be  reversed  unless  respondent  con- 
sents to  reduction  or  increase II  823 

where  judgment  against  several  defendants II  823 

when  appellate  court  may  direct  judgment  absolute.   II  824 
appellate  court  must  order  new  trial  on  reversal  if 

respondent  may  recover  in  any  aspect II  824 

when  leave  to  plead  over  will  not  be  given  on  de- 
murrer     II  276, 824 

what  order  made  on,  where  motion  denied  for  want 

of  power    II  825 

judgment   of   affirmance   not   to    award   the   relief 

granted  by  judgment  appealed  from II  825 

judgment  or  order  on,  how  enforced II  825-826 

when  docket  of  judgment  cancelled  or  amended  after 

appeal II  826 

dismissal  of  II  827 

must  be  made  upon  notice II  827 

must  be  made  to  appellate  court II  827 

who  may  move  to  dismiss II  827 

papers  upon  which  motion  made II  827 

when  motion  ex  parte  to  court  of  appeals II  828 

for  failure  to  give  undertaking  on  appeal  to  court 

of    appeals    II  828 

on  ground  of  failure  to  take  appeal  in  time 11  828 

to  court  of  appeals,  not  dismissed  for  failure  of 

appellant  to  notice  cause II  828 

for  what  delay  will  be  dismissed II  829,  860 

when,  from  discretionary  order  dismissed II  829 

when  appeal  to  court  of  appeals  may  be  from  an 

order  involving  facts,  appeal  dismissed II  829 

to  dismiss  appeal  in  court  of  appeals  for  failure  to 

serve  process  on  respondents II  829 

for  failure  to  give  stipulation  for  judgment  abso- 
lute     II  829 

for  failure  to  file  return II  860 

will  not  be  dismissed  for  defective  return II  861 


INDEX.  617 

APPEAL — {continued)  :  VOL.       page. 

for  failure  to  serve  case II  862 

to  appellate  division,  when  will  be  dismissed II  830 

not  dismissed  because  case  has  been  abandoned ....   II  830 

when  dismissed  for  failure  to  serve  papers II  830 

905-906 

re-argument  of,  what  is II  331 

when  granted  in  court  of  appeals II  831 

when  granted  in  appellate  division II  831 

general  grounds  of II    831-832 

motions  for,  how  submitted II  832 

restitution  on,  when  appellate  court  may  order  on  re- 
versing or   modifying   judgment II    833-836 

granting  of  discretionary II    833-834 

appellate  division  order  granting,  not  reviewable  in 

court  of  appeals   II  834 

what  rights  may  be  restored II  834 

may  be  ordered  on  granting  new  trial II  834 

of  what  will  be  ordered  on  reversal  in  ejectment. .   II    834-835 

when  ordered  in  action  of  quo  warranto II  835 

by  what  court  restitution  ordered II  835 

direction  for  restitution  enforceable  by  execution  or 

by  contempt  proceedings    II  836 

undertaking  to  prevent  sale  of  real  estate  in  action 

for  specific  performance  of  contract,  etc II  833 

to  court  of  appeals,  see  Coukt  of  Appeals. 
to  appellate  division  from   inferior   court,  see 

Appellate  Division. 
to   supreme   court  from   city  court  of  city  of 

New  York,  see  Supreme  Court. 
to  appellate  division  from  supreme  court,  see 

Appellate  Division. 
from  surrogate's  court,  see  Surrogate's  Court. 
from  justice's  court,  see  Justice  op  the  Peace. 

from  judgment  in  partition Ill      99-100 

stay  of  proceedings  on,  in  action  for  admeasure- 
ment of  dower    Ill  119 

from  judgment  in  foreclosure Ill  133 

in  statutory  reference  of  disputed  claim Ill  367 

from  order  in  supplementary  proceedings.  ..  .Ill    546-548 

568,  569 
from  order  appointing  receiver  in  supple- 
mentary proceedings    Ill        •    587 

See.    also.    Supplementary   Proceed- 
ings. 


G18  INDEX. 

APPEARANCE :  VOL.      page. 

230 
230 
230 
230 
231 
231 
232 


M'hen  defeudant  may  appear   

within  what  time,  must  be  made 

how    made    

what  constitutes  general 

equivalent  to  personal  service  of  summons 

gives  jurisdiction  of  person 

does  not  give  jurisdiction  of  subject  matter 

when  entitles  defendant  to  notice  of  subsequent  proceed- 
ings       I  232 

what  waived  by   I  233 

by  attorney,  good   I  232 

what   constitutes   special I  234 

efTect    of    special I  234 

what  irregularity  waived  by  general I  804 

discontinuance  after,  see  Discontinuance. 

to  entitle  defendant  to  notice  of  application  for  judg- 
ment by  default  II    710-711 

APPELLATE  DIVISION: 

what  questions  raised  at,  on  verdict  subject  to  opinion 

of  court    : II  342 

appeal   lies   to,    from   order   granting   or    denying   ref- 
erence   II  419 

appeal  lies  to,  from  refusal  to  resettle  case II  460,  467 

when  motion  for  new  trial  to  be  made  at II  384,  472 

504-511 
See  New  Tkial. 
order   granting   second   new'   trial   in   ejectment  re- 
viewable in II  517 

appeal  lies  to,  from  order  granting  additional  allow- 
ance     II  631 

appeal  lies  to,  from  order  on  motion  for  new  taxation  II  655 

costs  on  appeal  to II  615-617 

application  for  judgment,  after  hearing  exceptions  at  II  741-742 

motion  on  judgment  subject  to  opinion  of  court II  742 

final  judgment  on  affirmance  of  interlocutory  judg- 
ment by II  743 

when  appeal  to,  will  be  dismissed II  830 

not  dismissed  for  failure  to  make  case II  830 

when  dismissed  for  failure  to  serve  papers II  830 

when  re-argument  granted  by II  831-832 

appeal  to,  from  judgment  or  order  of  inferior  court.  .   II  876-880 

from  what  judgment,  may  be  taken II  876,  878 

what  orders  review'ed  upon  appeal  to  from  judg- 
ment     II  876 

877-878 

must  be  specified  in  notice  of  appeal  to II  877 


INDEX. 


619 


APFELJjATE  mVISIO'S—i CO nti meed):                                    vol.  page. 

what  orders  may  be  reviewed  on  appeal  to II  877 

how  far  discretionary  orders  may  be  reviewed 

by,  on  sticli  appeal II  879-880 

notice  of  appeal  to,  from  inferior  court II  885 

from  judgment,  when  appeal  to  be  taken  to ...  .  II  885 

from  order,  when  appeal  to  be  taken  to II  885 

security  upon  appeal  to,  from  inferior  court.  ...   II  886 
stay  of  proceedings  on  such  appeal  to,  how  ap- 
plied for II  886 

papers  on  such  appeal  to II  887 

where  such  appeal  to,  to  be  heard II  888 

what  questions  may  be  heard  on  such  appeal  to  II  889 

judgment  on  such  appeal  to,  where  entered II  889 

judgment-roll  on  such  appeal  to,  of  what  to  con- 
sist     II  889-890 

appeals  by  permission  to,  from  determination  of  su- 
preme court  on  appeal II  882-883 

scope  of  review  in,  on  such  appeal II  883 

when  leave  will  be  granted  by  supreme  court  to 

appeal  to,  in  such  cases II  883 

how  leave  to  appeal  secured II  884 

notice  of  appeal  to,  in  such  cases II  885 

when  appeal  to  be  taken II  885 

security  not  necessary  to  perfect  appeal II  886 

security  necessary  to  secure  stay II  886 

papers  on  such  appeal II  887-888 

hearing  of  such  appeal II  888 

questions  which  may  be  raised  on  such  appeal.   II  889 

judgment  on  such  appeal,  where  entered II  890-891 

stipulation  for  judgment  absolute  on   such   ap- 
peal from  order  granting  new  trial II  890-891 

appeals   to,   from   judgment   or   orders   of   supreme 

court II  892-916 

what  final  judgments  may  be  appealed  from.  ...   II  892-893 

no  appeal  from  judgment  entered  by  default. . .  II  893 
whether  fact's  may  be  reviewed  on  appeal  from 

nonsuit II  893-894 

Interlocutory  judgment',  what  may  be  appealed 

from II  894 

what  reviewed  on  appeal  from  judgment II  893,895 

how  questions  of  fact  review^ed II  895 

what  orders  may  be  appealed  from II  895-898 

what  orders  "  involve  the  merits  " II  896 

meaning  of  term   "substantial  right" II  896-898 

to  what  extent  discretionary  orders  appealable  II  896 

orders  made  by  judge,  what  appealable II  898-899 

must  be  entered  before  appeal  taken II  899 


620  INDEX. 

APPELLATE  DIVISION— (coniinuetZ)  :                                     VOL.       page. 
in  special  proceediugs,  what  orders  may  be  ap- 
pealed    II    899-900 

what  may  be  reviewed  upon II    900-901 

appeal  from  judgment  or  order,  when  to  be  taken  II   901-902 

how  time  limited  on  such  appeal II          902 

security  not  necessary  to  perfect II          902 

stay  of  proceedings,  how  obtained II    902-904 

notice   of   appeal II          904 

on  what  papers  appeal  to  be  heard II   904-911 

papers  how  served  and  filed II          905 

908-911 
dismissal  of  appeal   for   failure  to  serve  and  file 

papers II           830 

905-906 

stipulation  and  certification II           906 

only  papers   before   the  court  below  used  on   ap- 
peal    II           908 

when  papers  used  by  the  court  below  need  not  be 

printed II           907 

how  to  be  printed,  indexed,  etc II    907-908 

briefs,  exchange  of  in  various  departments II    908-910 

printed  papers,   number  to  be   delivered  to  clerk, 

and  when II    908-910 

special  requirements  of  briefs  in  different  depart- 
ments    II    910-911 

notice  of  argument   II           911 

note  of  issue  on  appeal  to,  when  filed II    911-912 

preference  to  be  claimed  in II    911-912 

argument  of  appeal,  where  heard II    912-913 

when  sent  to  another  department II    912-913 

when  non-enumerated  motions  heard II           913 

cases,  how  reserved  on  calendar,  etc II           914 

calendar  rules  for II           914 

hearing,  rules  for   11    914-915 

defaults,  what  order  or  judgment  on II           915 

order  on  appeal,  where  to  be  entered II           915 

certified  copy  of  order,  etc.,  to  be  transmitted  to 
clerk  of  county  where  judgment  or  order  appealed 

from  was   entered    II           915 

entry  of  judgment  below  on  order  of II           916 

judgment-roll  on  appeal  to,  of  what  to  consist....  II           916 
from    surrogate's    court    to,    see    Subbogate's 
Court. 

See,  also,  Supreme  Court.  ,. . 


INDEX. 


621 


AEBITRATION.:  vol.      page. 

when  time  to  sue  extended  by I  109 

effect  of,  as  discontinuance    II  181 

appeal  lies  from  judgment  on  award  in II  774 

ARREST: 

attorney   privileged    from I  38 

time  of  defendant  to  answer  after 1  236 

who  may  be   arrested I  498 

who   are  privileged   from I  498,  504 

See,  also,  Aerest  and  Bail. 

costs  for   procuring  order  of II  605 

cannot  be  granted  in  submission  of  controversy II  770 

when  party  not  arrested  for  non-payment  of  costs II  965 

effect  of  order  of,  on  right  to  replevin Ill  213 

officer  of  joint  stock  association  against  whom  action  is 

brought,  cannot  be  arrested   Ill  440 

order  of,  in  action  against  usurper  of  office  or  franchise .  Ill  488-489 
in  supplementary  proceedings,  see  Supplementary  Pro- 
ceedings. 


ARREST  AND  BAIL: 

where  right  to  arrest  depends  upon  nature  of  action 

in  action  for  fine  or  penalty 

is  action  for  personal  injury,  vphat  included  in. . 

in  action  for  separation  or  divorce 

in  action  for  injury  to  property 

what  are  such  actions 

not  granted  in  action  for  money  lost  at  play. . . . 

not  granted  where  property  converted  and  tort 
waived 

when  not  gi-anted  for  breach  of  promise 

for  misconduct  or  neglect  in  office 

against  attorney  for  money  collected 

in  action  for  money   received  in  fiduciary  ca- 
pacity   

in  action  for  damage  for  fraud  or  deceit 

in  action   to  recover  chattel,   fraudulently   dis- 
posed of 

in  action  for  conversion  of  public  property 

in  action  on  contract  for  fraud  in  incurring  lia- 
bility   

only  granted  when  authorized  by  statute 

when  should  not  be  granted 

where  right  depends  partly  upon  extrinsic  facts .... 

substitute  for  writ  of  ne  exeat 

in   supplementary   proceedings II 

against  whom  it  will  be  granted 

for  what  purpose  order  will  be  granted 


482 
484 
484 
485 
486 
486 
487 

487 
487 
487 
488 

488,  490 
488 

489 

492 

495 
483 
483 
495 
496 
534 
496 
496 


(i'2'2  INDEX. 

ARREST  AND  BAIL— (ox/i/i wed)  :                                             vol.  page. 

privilege  from  arrest I  498 

"Who  may  be  arrested I  498 

vvbeu  Avomau  can  be  arrested I  499 

incompetent  person,  when  to  be  discharged....     I  499 

when  infant  cannot  be I  499 

one  sued  in  representative  capacitj^  when  can- 
not be  I  500 

members  of  congress,  when I  501 

persons  in  public  service I  501 

members  of  legislature I  501 

officers  of  legislature I  501 

superintendent  of  public  works,  etc I  501 

militia I  501 

soldiers  of  United  States I  501 

foreign  ministers I  502 

witnesses I  502 

parties   to  actions,  when I  503 

police  officers I  503 

officers  of  court I  503 

prisoner  in  arrest I  503 

one  brought  within  jurisdiction  by  fraud I  504 

how  discharged  bj'  reason  of I  519 

in   supplementary  proceedings Ill  507 

privilege,  how  waived I  504 

papers   necessary   to   obtain I  496,  505 

only  to  be  granted  on  affidavit I  505 

when  affidavit  upon  information  and  belief  suf- 
ficient       I  507 

how  facts  must  be  stated  in  affidavit  for I  507 

papers  must  be  filed I  524 

undertaking  to  be  given  in I  509 

when  required I  509 

when  may  be  dispensed  with I  511 

not  required  in  granting  order  of  arrest  in  sup- 
plementary proceedings Ill  534 

order  for,  by  whom  granted I  511 

when  granted  only  by  court I  512 

when  county  judge  may  grant I  513 

when  may  be  granted I  512 

contents  of  order I  514 

may  fix  time  within  which  defendant  must  be 

arrested I  514 

must  state  grounds  on  which  granted I  514 

must  be  subscribed  by  attorney I  514 

in   supplementary   proceedings Ill  521,  534 

how  vacated  or  modified I  515 

when  application  must  be  made  to I  515 


INDEX. 


623 


ARREST  AND  PAIL— (o«//«»t(0  :                                           vol.  page. 
must  be  vacated,  if  uo  cause  of  action,  iu  com- 
plaint    I  517,  519 

wheu    made    on    papers    on    which    order    was 

granted I  517 

when  founded  upon  proof  by  affidavit I  518 

Avhen  notice  required I  518 

county  judge  may  hear  motion  for,  on  notice..  .  I  520 

rules  of  decision,  on  motion I  518 

when  motion  to,  may  be  joined  with  motion  to 

reduce  bail I  520 

to  whom  application  must  be  made I  520 

when  court  may  require  stipulation  not  to  sue. .  I  521 

in  supplementary  proceedings Ill  535 

how  arrest  made I  524 

must  be  made  within  county I  524 

where  time  fixed  for,  cannot  be  arrested  after- 
wards    I  524 

what  papers  must  be  served  upon  arrest' I  524 

In   supplementary   proceedings Ill  534 

bail,  how  given I  525 

sureties  may  be  required  to  justify  on I  527 

proceedings  upon  justification  of  sureties I  527 

where  justification  may  be  made I  527 

qualification  of  sureties  on I  528 

deposit  may  be  made  instead  of  bail I  529 

deposit  to  be  paid  into  court  by  sheriff I  529 

money  deposited,  how  disposed  of I  530 

undertaking  by  judgment  debtor  in  supplemen* 

tary  proceedings Ill    536-537 

when  defendant  entitled  to  discharge  for  delay  of 

plaintiff I  521 

liability  of  sheriff  after  arrest  of  defendant I  531 

rights  and  privileges  of  sheriff,  when  liable I  531 

when  bail  may  surrender  defendant I  532 

how  surrender  to  be  made  by  bail I  532 

how  surrender  to  be  made  by  defendant I  533 

liability  of  bail,  on  failure  to  justify I  5.34 

bail  can  only  be  proceeded  against  by  action I  535 

when  such  action  may  be  brought  against  bail I  535 

what  defenses  may  be  interposed  in  action  against 

bail I  536 

how  discharged  before  expiration  of  time  to  answer.  I  537 

exoneration  of.  after  action  commenced I  537 

may  be  permitted  to  defend  original  action I  537 

/S'ee.  also.  Provisional  Retmedies. 


624 


INDEX. 


ASSESSMENT:                                                                             vol.  page. 

will  uot  be  restrained  bj'  injunction I  572 

ASSiESSMENT  OF  DAMAGES: 

See  Damages,  Default,  and  Jxtdgment. 

ASSIGNEE: 

when  counterclaim  allowed  against I  449 

when  substituted  as  plaintiff  in  place  of  assignor. ...  I  823 

ASSOCIATION: 

action  by  or  against,  see  Joint  Stock  Association. 

ATTACHMENT: 

notice  of  pendency  must  be  filed,  after  warrant  of . .  I  239 

cancellation  of  notice  of  pendency j-.  I  243 

when  and  by  whom  it  may  be  granted I  612 

who  may  sue  out I  612 

when  non-resident  may  obtain I  613 

in  what  actions  granted I  613 

in  what  actions  cannot  be  granted I  617 

cause  of  action  must  exist  at  time  of  application  for  I  613 
distinction  between,  under  code,  and  under  revised 

statutes I  614 

only  granted  in  cases  authorized  by  statute I  614 

granting  of,  discretionary  with  court I  615 

may  be  granted  in  action  for  unliquidated  damages  I  615 

against  non-resident I  618 

what  constitutes  non-residence I  618 

when  granted  against  foreign  administrator I  618 

not  granted  against  foreign  receiver I  618 

not  granted  against  resident  member  of  non-resident 

firm I  618 

granted  against  foreign  corporation I  619 

not  granted  against  national  bank I  619 

against  absconding  or  concealing  debtors I  619 

against  one  removing,  assigning,  or  secreting  prop- 
erty    I  621 

property  removed  must  be  that  of  defendant I  621 

threatening     to     make     preferential     assignment, 

whether  ground  of I  622 

agreement  to  give  preference,  not  ground  of I  622 

assignment,  fraudulent  In  law,  not  sufficient  ground 

for I  622 

not  necessary  that  defendant  should  dispose  of  all 

of  his  property  to  entitle  plaintiff  to I  623 

against  one  making  false  statement  as  to  financial 

responsibility I  623 

against  resident  absent  from  state,  etc I  624 

against  public  officer I  625 


INDEX. 


625 


ATTACHMENT— (coniinwed)  :  VOL.       page. 

may  be  granted  to  accompany  summons I  625 

jurisdiction  lost  if  summons  not  served  in  thirty  days  I  626 
when  jurisdiction  acquired  by  general  appearance. .  I  627 
service  upon  all  partners  necessary  to  retain  juris- 
diction    I  627 

service  by  publication,  what  sufficient I  627 

what  jurisdiction  retained,  without  actual  service..  I  627 

substituted  service,  held  not  sufficient I  628 

by  whom  warrant  granted I  629 

papers  on  which  granted I  630 

application  must  be  founded  upon  affidavit....  I  631 

what  must  be  shown  by  affidavit I  630 

by  whom  affidavit  may  be  made I  631 

cause  of  action,  how  stated  in  affidavit'  for I  634 

when   affidavit  on  information  and   belief  suf- 
ficient    I  631 

when  allegations  on  information  and  belief  do 

not  give  jurisdiction I  632 

amount  due  must  be  stated  in  affidavit  for. ...  I  635 

bow  statement  of  amount  due  to  be  made I  635 

must  appear  that  debt  is  due I  635 

bow  non-residence  must  be  stated  in I  637,  639 

how  foreign  incorporation  must  be  shown I  638,  639 

fact's   showing   defendant  has  absconded,   etc., 

must  be  stated 1  637 

intent  must  be  shown I  619 

622,  637 

need  not  be  stated,  no  previous  application  made  I  639 

how  other  papers  referred  t'o  in  affidavit I  639 

deposition  of  party  cannot  be  compelled I  639 

deposition  of  third  party  may  be  compelled '  I  639 

prima  facie  proof  of  fact  sufficient I          639 

what  must  appear  in,  in  action  against  public 

officer I  640 

affidavits  must  be  filed I  640 

security  on  obtaining  wan-ant I  640 

undertaking  must  be  given I  640 

If  undertaking  defective,  new  one  may  be  or- 
dered   I  641 

when  amount  of  undertaking  will  be  increased.  I  641 

liability  of  sureties I  641 

sureties  not  exonerated  by  vacating  for  error. .  I  683 
warrant  improperly  granted,  no  defense  to  sure- 
ties    I  642 

warrant  must  be  subscribed  by  judge  and  attorney  I  642 

must  recite  grounds  of  attachment I  643 

40 


626 


INDEX. 


ATTACPIMEXT—  ( contin ued )  :  VOL. 

to  what  sheriff,  -warrant  directed 

form  of  warrant 

several  may  be  issued 

may  be  amended 

execution  of  warrant,  must  be  by  sherifiC 

how  to  be  executed 

levy  upon,  not  made  after  linal  judgment 

sheriff  may  require  indemnity 

inventory  to  be  returned 

return  of  the  attachment 

what  property  may  be  attached 

real  property  may  be  levied  upon 

how  levy  made  upon  real  property 

lis  pendens  to  be  filed 

personal  property,  what  may  be  levied  upon. . . . 
mortgaged  property,  what  may  be  levied  upon. 

money  collected  by   sheriff 

property  of  a  firm 

property  of  foreign  corporation 

property    disposed   of,    wifh    intent    to    defraud 

creditors 

stock  of  defendant  in  corporation 

stock  of  foreign  corporation,  when  not  leviable 

upon 

may  be  levied  upon  chose  in  action 

choses    in   action   transferred   before   levy,   not 

levied  upon  against  assignor 

legal  debt  only  can  be  levied  upon 

levy  upon  personal  property  capable  of  manual  de- 
livery, how 

failure  "to  deliver  copy  warrant,  does  not  Invalidate 

levy 

levy  on  property  not  capable  of  manual  delivery, 

how  made 

includes  property  pledged 

judgment  how  levied  upon 

notice  of  property  levied  on.  what  sufl3ciont 

duty  of  debtor  after  levy 

upon  property  discovered  in  action  by  sheriff 

warrant  of,  lien  from  time  of  levy 

levy  does  not  relate  to  time  of  original  demand  of 

property  

when   certificate   to   be   furnished   by   possessor   of 

property   

order  for  examination,  if  certificate  refused 

when  such  order  may  be  granted 

what  examination  may  be  had  under  such  order. . . 


INDEX. 


627 


ATTACHMENT — (continued):                                                     vol,  page. 

remedy  of  sheriff  after  examination I  659 

master  of  vessel,  vv^lien  entitled  to  undertaking  upon 

levy I  660 

form  of  undertaliing I  660 

inventory  to  be  made  by  sbei'iff I  660 

to  be  filed  within  five  days I  661 

failure  to  make,  does  not  invalidate  levy I  661 

may  be  amended I  661 

return  of,  may  be  compelled I  661 

what  suits  may  be  brought  by  sheriff  with  regard  to 

attached  property I  661 

when  plaintiff  in  action  may  sue  to  collect  attached 

property I  662 

when  plaintiff  may  be  joined  with  sheriff  in  action 

already  brought I  663 

court  may  direct  as  to  prosecution  of  such  action. .  I  663 
what  application  may  be  made  as  to,  by  plaintiff  in 

second  warrant I  690 

when    plaintiff    in  second    warrant,    substituted    in 

action I  690 

when  plaintiff  in  second  warrant,  allowed  to  bring 

action I  690 

rights  of  plaintiff  in  third  and  subsequent  warrants  I  690 

how  far  sheriff  may  attack  assignment  as  fraudulent  I  664 

how  property  kept  by  sheriff I  666 

when  sheriff  may  be  compelled  to  pay  money  into 

court I  666 

lien  of  sheriff  upon  levy,  nature  of I  666 

duty  of  sheriff  as  to  books  taken I  666 

money  lost,  who  liable  for I  666 

when  court'  may  release  property  attached I  667 

when  court  may  direct  things  in  action  to  be  sold.  . .  I  693 

notice  of  application  for  such  oi'der I  693 

perishable  property  may  be  sold I  667 

adverse  claim  to  property,  how  tried I  668 

proceedings  on  claim  of  vessel I  670 

proceedings  on  claim  of  foreign  vessel I  671 

who  may  move  to  vacate  or  modify  warrant I  673 

what  lienor  may  move  to  vacate  or  modify. ...  I  673 

upon  what  grounds  he  may  move I  673 

lienor  need  not  become  party  to  suit I  674 

defendant  may  move  to  vacate,  although  undertak- 
ing has  been  given  to  release  property I  675 

what  is  such  application  of  property  as  bars  right 

to  move I  675 

motion   to   vacate   for   irregularity,   when    must   be 

made I  676 


628  INDEX. 

ATTACHMENT— (continued)  :                                                      VOL.  PAGE. 

motion  upon  papers,  to  vacate,  when  made I  676 

what  papers  may  be  used  by  lienor I  677 

when  motion  made  ou  papers,  no  opposing  affidavits 

to  be  read I  677 

what  proof  by  moving  party  permits  new  affidavits 

to  be  read I  677 

when    motion   may   be   founded   on   new   proof   by 

affidavit I  678 

what   constitutes   new   proof I  678 

what  plaintiff  may  establish  by  new  affidavits I  678 

when  more  than  one  motion  to  vacate  may  be  made  I  680 

motion  to  vacate  on  papers,  when  granted I  680 

court  will  not  pass  on  merits  on  motion  to  vacate. . .  I  681 

effect  of  vacating  for  irregularity I  682 

effect  of  vacating,  where  erroneously  issued I  683 

duty  of  sheriff,  where  vacated  for  irregularity I  683 

when  sureties  not  discharged  by  vacating I  683 

application  for  discharge  of  property  from,  defend- 
ant only  may  make I  683 

part  of  property  may  be  discharged I  683 

what  notice  of  application  required I  684 

when  court  to  direct  notice  to  be  given I  684 

undertaking  required  on  such  application I  685 

to  be  presented  at  time  of  application I  685 

form  of,  when  application  made  by  less  than  all 

defendants I  685 

must  be  filed  with  clerk I  685 

justification  of  sureties  on I  685 

sheriff  responsible  for  sufficiency  of  sureties  on  I  686 

sheriff,  when  must  retain  possession  of  property I  686 

application  for  discharge  of  vessel  from I  686 

application  by  partners  to  discharge  property  from  I  687 

what  undertaking  to  be  given  on I  687 

how  amount  of  undertaking  fixed I  687 

what  notice  of  application  to  be  given I  687 

duty  of  sheriff,  where  second  warrant  issued I  688 

how  levy  made  under  second  warrant I  688 

when  levy  cannot  be  made  under  second  warrant. .  I  688 

preference,  where  two  or  more  warants  issued....  I  689 
rights  of  plaintiff  in  second  warrant  against  foreign 

vessel I  689 

when  may  be  attached  under  subsequent  war- 
rant    I  689 

when  cannot  be  attached  after  release I  689 

judgment  upon,  how  stayed I  691 

execution  upon,  see  Execution. 


INDEX.  629 

ATTACHMENT— (continued):                                                   vol.  page. 

unsold  property  levied  upon,  how  disposed  of I  693 

application  for  order  of  sale  for I  693 

■what  notice  of  application  to  be  given I  693 

when  person  having  property  of  foreign  corporation 

may  be  required  to  pay  on I  693 

after  wai'rant  annulled,  to  whom  property  delivered    I  694 

sheriff  must  deliver  books,  etc.,  to  defendant I  695 

when  assignment  of  undertakings  must  be  delivered 

to  defendant I  695 

after  vacating,  defendant  to  be  substituted  as  plain- 
tiff in  suit  by  sheriff I  695 

lis  pendens  to  be  cancelled  after  vacating I  696 

return  to  be  filed  after  vacating I  696 

warrant  of  may  be  amended '. I  788 

See,  also,  Provisional  Remedies. 
additional  allowance  in   action,   where  w^arrant  of, 

issued II  619 

sheriff's  fee  for  serving  warrant  of II  667 

669-670 

cannot'  be  granted  in  submission  of  controversy. ...  II  770 
restitution  on  reversal  or  modification  of  judgment 

where  laud  seized  on II  834-835 

contents  of  execution,  where  warrant  of,  has  been 

levied II  985 

to  whom  execution  issued  in  such  case II  989 

execution  where  warrant  of,  has  been  levied II  1016 

levy  where  warrant  of,  has  been  annulled II  1016 

property  of  officer  of  joint  stock  association  against 

whom  action  is  brought,  cannot  be  attached Ill  440 

ATTORNEY: 

admission  to  practice,  and  removal  of I  29 

proceedings  to  punish I  30 

effect  of  suspension  or  removal I  33 

how  controlled  by  the  court I  33 

how  punished  for  deceit  or  collusion I  35 

not  to  lend  his  name I  35 

not  to  buy  choses  in  action  with  intent  to  bring  suit    I  35 

such  intent,  however,  must  be  proved I  36 

what  not  forbidden I  36 

shall  not  pay  to  procure  claims  for  suit I  36,  46 

for  what  purpose  may  receive  thing  in  action I  37 

shall  not  be  bail  or  surety I  37,  298 

only  those  admitted  can  practice  in  city  of  New  York    I  37 

proceedings  upon  death,  removal  or  disability  of . . . .     I  37,  286 

service  of  notice  on  surviving  partner  sufficient....     I  38 

when  privileged  from  arrest I  38 


630  INDEX. 

ATTORNEY— (coH<i«u«d)  :                                                             VOL.  PAGE, 

authority  to  practice  presumed I  39 

when  authority  must  be  proved I  39 

when  must  disclose  client's  address I  39 

powers  and  limitations  under  retainer I  39 

and  client',  when  relation  ends -     I  43 

how  substituted I  44 

lien  of,  upon  papers  for  services I    »       44 

may  agree  with  client  for  compensation I  45 

when  court  may  sot  aside  such  agreement  for  com- 
pensation       I  45 

extent  of  lien  of I  46 

whether  notice  of  lien  required I  50 

right  of  parties  to  settle  without  regard  to  lien I  48 

lien  of,  how  may  be  enforced I  48 

when  compensation  of,  may  be  fixed  by  summary 

proceedings I  50 

for  one  suing  as  poor  person,  lien  of I  50 

punished  for  including  scandalous  matter  in  pleading     I  52 

not  to  disclose  professional  communications I  52 

III  564 

must  serve  for  poor  person  without  compensation....      I  135 

when  may  act  as  guardian  ad  litem I  182 

summons  must  be  signed  by I  192 

effect  of  appearance  by I  232 

when  authority  to  appear  may  be  disputed I  232 

papers  must  be  signed  by I  283 

service  upon,  how  made   I  286 

when  to  cause  papers  to  be  filed I  291 

when  verification  may  be  made  by I  340 

will  be  charged  with  costs  on  motion  to  expunge  scan- 
dalous  matter    I  300 

when  need  not  produce  papers  of  client  upon  subpoena . .  II  85-86 

absence  of,  when  ground  of  postponement II  2o2 

when  liable  for  costs II    535-536 

See  Security  for  Costs. 
ATTORNEY-GENERAL : 

action  bv,  against  trustee,  or  other  oflicer.  of  corpora- 
tion .* Ill  316 

whether  such  action  shall  be  brought,  in  absolute 

discretion  of    Ill  318 

action  by  to  dissolve  corporation    Ill  325 

when  must  bring  action  to  annul  corporation HI    340-341 

when  may  bring  such  action  on  leave  granted Ill  341 

when  may  bring  action  against  usurper  of  office  or  fran- 
chise   HI    476-477 

cannot  be  compelled  to  bring  such  action Ill    483-484 

485 

entitled  to  compensation  by  relator  in  such  action. Ill  485 


INDEX.  631 

AWAED:                                                                                         vol.  page. 

cannot  be  made  on  Sunday I  5 

See,  also,  Arbitration. 

B. 

BAIL: 

sheriflf  cannot  be I  22 

attorney  cannot  be I  37 

See,  also.  Arrest  and  Bail. 

BANK  BILLS: 

not  within  statute  of  limitations I  110 

BANKING  ASSOCIATION: 

actions  by  or  against  may  be  in  name  of  president. ...  I  146 

actions  by  or  against  stockholders  of I  148 

receiver  in,  pioceedings  against I  730 

BANKRUPTCY: 

stay  of  proceedings  after  adjudication  of II  202 

stay  after  discharge  in II  202-203 

trustee  in,  when  required  to  give  security  for  costs. ...  II  519-520 

costs  against  trustee  in II  571,  572 

cancellation  and  discharge  of  judgment  after  discharge 

in II  745-747 

BILLS  AND  NOTES: 

counterclaim  against  transferee  of  overdue I  451 

BILL  OF  EXCEPTIONS: 

what  to  contain II  456-457 

See,  also,  Case  and  Exceptions. 

BILL  OF  ITEMS: 

when  party  entitled  to I  361 

demand  must  be  made  for I  352 

what  must  be  stated  in I  352 

when  further  account  will  be  ordered I  352 

penalty  for  failure  to  serve I  352 

BILL  OF  PARTICULARS: 

in  what  cases  will  be  ordered  to  be  delivered I  353 

discretionary  with  court  I  353 

obtained  only  by  order I  353 

office  of    I  353, 358 

granted  in  actions  for  tort I  354 

application  for,  how  made I  355 

affidavit  for,  what  should  state I  356 

order  for,  form  of  I  357 

what  should  be  contained  in I  358 

further  bill,  when  granted  I  359 

effect    of    I  359 


632  INDEX. 

BILL  OF  PARTICULARS— (continued)  :  vol.       page. 

penalty  for  disobedience   I  360 

penalty  for  disobedience,  may  be  inserted  in  order I  360 

examination  before  trial  to  enable  party  to  furnish....   II  7 

may  be  ordered  in  reference  of  disputed  claim  against 

decedent's    estate     Ill    364-365 

BOARD  OF  SUPERVISORS: 

when  may  sue  or  be  sued I  156 

proceedings  of,  how  proved II    114-115 

BONDS : 

when  leave  to  sue  upon  necessary I  125 

See,  also,  Undertakings. 

BOOKS  AND  PAPERS. 

See  Disco\t:ry  of  Books  and  Papers. 

production  of,  on  examination  of  party II        21-22 

28-29 

by  whom  retained  after  examination II        28-29 

of  corporation,  how  production  compelled  on  trial....   II  87 
as  to  compelling  production  of,  in  action  to  dis- 
solve   Ill           336 

production  of,  may  be  compelled  in  examination  as 

third  party  in  supplementary  proceedings Ill  517 

of  foreign  corporations,  see  Foreign  Corporation. 

notice  to  produce    II    104-106 

admission  of  genuineness  of   II  107 

request  for  such  admission II  107 

effect  of  refusal  upon  such  request II  107 

use  of,  by  counsel,  in  summing  up II    354-356 

referee  cannot  order  discovery  of II  424 

of  municipality  open  to  inspection  of  taxpayers Ill  455 

proceedings  to  compel  delivery  of,  of  office,  see 
Usurper  of  Office. 

BURDEN  OF  PROOF: 
See  Proof. 

BY  LAW: 

of  municipal  corporation,  how  proved   II    114-115 


c. 

CALENDAR: 

how  preferred  cause  to  be  put  on II  244-246 

motion  to  correct,  when  made II  239 

for   short   causes II  248, 259 

of  court  of  appeals,  how  made,  etc II  864-866 

practice  in   appellate   division II  914 


INDEX.  633 

CASE  AND  EXCEPTIONS:  vol.       page. 

amendment  of    I  790 

when   required    . II    453-456 

477-478 
508,510 
513,514 

after   "  short-form  "    decision II  453,  455 

after  present  "  long-form  "  decision II  455 

no  review  of  questions  of  fact  or  law  arising  during  the 

trial  without    II  455, 816 

on  what  motions,  required   II    454-456 

what  to  contain  II    456-461 

form  of    II    457-458 

when  must  appear  that  all  evidence  is  contained  in.  . .  .   II    458-460 

815-816 

who  must  insert  necessary  evidence   II  460 

what  questions  may  be  raised  without  exception II  398,460 

when  judge's  charge  to  be  inserted  in II  461 

when  remarks  of  counsel  in  summing  up  to  be  inserted. .   II  461 

opinion  of  the  court  no  part  of II  461 

when  must  be  served II  461 

time  to  serve,  how  limited II  462 

amendments  to,  when  to  be  served II  462 

how    prepared     II  462 

when  entire  new  case  may  be  proposed  as  amend- 
ment     II  463 

setlement    of    II  463 

time  for   II  463 

by  whom  settled   II    463-464 

where  more  than  one  referee II  463 

where  judge  or  referee  has  died II  464 

allowance  or  disallowance  of  amendment  to  be  marked 

thereon II  464 

how  case  to  be  settled  II    464-465 

engrossing  of  case II  465 

certificate  to  be  attached II  465 

when  re-settlement  will  be  ordered II  465 

refusal  to  re-settle  appealable  to  appellate  division.   II  460,  467 

wheio  motion  for,  made,  and  on  what  papers II    466-468 

when  case  to  be  filed II  468 

original  to  be  filed  with  engrossed  or  printed  copy II  465 

effect  of  failure  to  serve  case II  462 

468-469 
costs  for  making  and  serving II  610 


634  INDEX. 

CAUSE  OF  ACTION:  vol.      paqk. 

what  constitutes  a  single I  403 

test  of  survivability  of    I  808 

what  may  be  joined  in  complaint,  see  Complaint. 
See,  also,  Action. 

CERTIFICATE : 

of  public  officer,  of  what  facts  evidence II  95-98 

that  paper  cannot  be  found II  96 

when  creates  presumption  of  genuineness II  96 

sherifl's  certificate  of  sale II  97 

surrogate's  certificate  of  probate  of  will II  97 

county  clerk's  certificate  as  to  payment  of  capital  stock 

of  corporation II  97 

of  chief  officer  of  state  prison,  evidence  of  imprisonment.  II  97 

of  various  public  officers   II  98 

of  presentment  and  protest  by  notary  public,  when  evi- 
dence    II  98-101 

See  Notary  Ptjblic. 

of  marriage,  when  evidence  II  102 

See  Record. 

form  of,  when  not  otherwise  prescribed II  125 

duty  of  officer  to  make  search  and  certificate II    125-126 

for  costs,  application  for,  after  verdict II  383 

of  trial  judge  that  title  to  land  came  in  question  on  the 

trial,  conclusive  on  taxing  officer II  545 

for   costs,   generally    II    602-604 

for  increased  costs    II  645 

of  sale  of  real  property  on  execution II  1041 

effect  of  redemption  upon II  1047 

of  redemption  from  sale II  1046 

See  Execution. 

CERTIORARI: 

title  to  office  not  determinable  by Ill  480 

CHALLENGE : 

to  jury,  either  party  may  interpose II  294 

See  Trial  by  Jury. 
CHANCERY: 

when  proceedings  had  according  to  practice  of I  2 

CHANGE  OF  PLACE  OF  TRIAL.     See  Place  of  Trl^. 

CHARGE  TO  JURY.     See  Trial  by  Jury. 

CHATTEL: 

action  for,  when  barred    I  93 

distrained,  in  what  counties  actions  brought  to  recover.  II  131-133 

action  to  recover  a,  triable  by  jury II  212 

costs  to  plaintiff  in  action  to  recover II  545-546 


INDEX.  635 

CHATTEL — (continued):  VOL.       page. 

judgment  in  action  for,  enforced  by  execution II  963 

contents  of  execution  for II    987-988 

foreclosure  of  liens  on,  see  Liens. 

action  to  recover,  sec  Replevin. 

CHATTEL  MORTGAGE : 

certified  copy  of,  of  what  fact  evidence II  111 

CHILDREN: 

legitimacy,    care    and    custody    of,    see    Mateimonial 
Actions. 

CIRCUIT  COURT: 

abolished  and  jurisdiction  vested  in  trial  term I  3,  4 

CITY: 

ordinance,  by-law,  resolution  or  proceeding  of  common 

council  of,  how  proved II    114-115 

CITY  COURT  OF  THE  CITY  OF  NEW  YORK: 

terms  of    I  10 

always  open  for  transaction  of  ex  parte  business I  10 

how  constituted   I  68 

jurisdiction  of    I  69 

in  action  for  enforcement  of  mechanics'  lien Ill  162 

as  to  marine  causes I  70 

cannot   naturalize   an   alien I  70 

no  equitable  jurisdiction   I  70 

order  or  warrant  granted  by  justice  only 1  71 

limitation  of  action  on  judgment  of I  91 

when  may  grant  commission II  46 

place  of  trial  in  action  brought  in,  how  changed II  148 

when  may  require  security  for  costs II  520 

fees  of  clerk  of II  665 

appeal  from,  to  supreme  court,  see  Supreme  Coubt. 
when  judge  of,  may  entertain  supplementary  proceed- 
ings  Ill  519 

520-521 

CIVIL  ACTION: 

defined I  80 

CLAIMS : 

attorney  shall  not  pay  to  procure,  for  suits I  339 

against  the  people,  when  barred I  103 

to  surplus  moneys,  see  Surplus  Moneys. 
of  third  party  in  replevin,  see  Replevin. 

what,   against  corporation   preferred Ill    333-334 

against  estate  of  decedent,  see  Executors  and 
Administrators,,  and  Decedent. 


636  INDEX. 

CLERK :                                                                                                VOL.  page. 

to  open  and  adjourn  court  in  judge's  absence I  11,12 

of  court3,  how  appointed    I  lf5 

county  clerk  to  be,  of  supreme  court I  16 

duties  and  powers  of   I  16-18 

fees  of,  how  fixed I  18-19 

fees  may  be  required  in  advance   I  19 

to  receive  fees  only  when  allowed  by  law I  19 

must  appoint  deputy   I  20 

shall   not  practice  as  attorney I  20 

deputy  clerk  not  to  practice  as  attorney 1  20 

office,  when  to  be  kept  open I  20 

when  papers  may  be  served  on  I  287 

fees  of,  see  Fees. 

to  tax  costs    II  645-646 

See  Taxation  of  Costs. 

entry  and  docket  of  judgment  by,  see  Judgment. 

transcript  of  judgment  to  be  furnished  by II  686-687 

to  what,  execution  to  be  returned II  993 

CODE: 

where  no  provision  made  by,  what  practice  controls. ...     I  2 

CORfMENCEMENT  OF  ACTION: 

what  is,  under  statute  of  limitations I  118 

COMMISSION: 

how   opened   and   filed I  18 

to  take  testimony  may  be  amended I  791 

to  examine  witness  without  the  state  on  written  inter- 
rogatories, when  may  be  granted II  39-42 

may  be  granted  in  actions  and  special  proceedings....  II  40-41 

including  supplementary  proceedings Ill  562 

to  examine  resident  witness,  if  without  state II  41 

when   granted   upon   oral   questions II  42 

when  open  commission  will  be  granted II  42-44 

by   consent    II  44 

application  for,  where  made    II  47-48 

when  made II  48-49 

not  granted  if  made  for  delay II  48 

notice   of    II  49 

by  whom  granted    II  50 

what  facts  must  appear  upon II  50-51 

when  affidavit  of  merits  necessary  upon II  51 

by  whom  affidavit  made  II  51 

what  may  be  shown  in  opposition  to II  51,  56 

second,  when  issued   II  45-46 

when  granted  by  surrogate's  court II  46 

when  granted  by  city  court  of  New  York II  46 


INDEX.  637 

COMMISSION — (continued):                                                     vol.  page. 

order  for  must  be  entered  II  47 

what  to  contain  II  52-53 

to  prescribe  bow  commission  to  be  returned II  52,  60 

when  may  direct  interrogatories   to  be  in  foreign 

language II  53 

what  to  be  endorsed   on II  53,  61 

terms  upon  granting II  53-55 

stay  of  proceedings,  when  granted  for II  55 

interrogatories  upon,  how  prepared II  57 

cross  interrogatories,  how  prepared   II  57 

how  served    II  58 

how  to  be  settled   II  58-59,  70 

objections  to,  when  taken   II  57,  58-59 

what   to   contain    II  57 

to  be  sealed    II  60,  61 

to  whom  issued    II  60,  61-62 

notice  of  execiition  to  be  given,  when  without  written 

interrogatories II  63 

who  may  be  examined  upon  II  63-64 

depositions  upon,  how  taken II  64-65 

on  taking,  witnesses  to  be  sworn II  64 

to  be  reduced  to  writing  and  signed II  64 

exhibits  produced  upon,  to  be  attached II  64 

how  to  be  signed  by  commissioner II  65 

how  to  be  certified II  65-67 

how  1o  be  annexed  to  commission II  67 

by  whom  and  how  returned   II  67-68 

return  to  be  endorsed  upon II  68-69 

filing  of   II  68-69 

effect  of  delay  in  executing II  69-70 

may  be  sent  back  for  amendment II  70-71 

for  what  reason   deposition   suppressed II  70-73 

motion  to   suppress    II  73-74 

when  necessary  to  move  to  suppress II  73-74 

what  defects  waived  by  failure  to  move  to  suppress. ...   II  73-74 

order  to  suppress    II  74-75 

depositions  on,  when  read  in  evidence II  75-76 

effect  of  when  read   II  76-77 

what  questions  may  be  raised  on  reading 11  76-77 

See  Letters  Rogatory. 

COMMISSIONER: 

to  take  testimony,  who  may  be II  60,  61-62 

what  fees  of,  to  take  testimony,  may  be  taxed II  636 

to  make  partition    Ill  59 

See  Partition. 

for  admeasurement  of  dower Ill  112-114 


638 


INDEX. 


COMMISSIONERS   OF  HIGHWAYS: 

when  may  sue  or  be  sued 

COMMITTEE: 

of  incompetent  person,  leave  to  sue  in  actions  by  and 

against  

cannot  sue  as  poor  person 

how  and  when  appointed 

COMMON  LAW: 

of  another  state,  or  foreign  country,  how  to  be  proved.  .    I 
in  absence  of  proof  of  law  of  another  state,  common  law 
presumed I 

COMPARISON : 

proof  of  disputed  writings  by I 

COMPENSATION: 

attorney  may  agree  with  client  for  

when  court  may  set  aside  such  contract  for 

of  attorney,  when  may  be  fixed  by  summary  proceed- 
ings   

of   receiver 

COMPLAINT: 

may  be  served  with  summons  

when  dismissed  for  failure  to  serve  summons 

when  dismissed  for  failure  to  serve  copy 

when  dismissed  for  unreasonable  neglect  of  plaintiff  to 

proceed  

common  counts  in  assumpsit,  good  under  code  pleading, 
causes  of  action  to  be  separately  stated  in 

amendment  of,  see  Amendment. 

what  must  contain   

name  of  court  must  be  stated  in 

in  supreme  court,  name  of  county  must  be  stated  in . . 

effect  of  omission  of  name  of  court  from 

remedy  for  failure  to  state  county 

effect  of  failure  to  state  proper  county 

names  of  parties  must  be  stated  in   

what  facts  to  be  stated  in 

what  facts  need  not  be  stated  in 

how  facts  to  be  stated  in 

where  corporation,  party,  incorporation  must  be  alleged . 

when  allegations  of  demand  necessary  in 

certain  allegations  necessary  for  certain  actions 

joinder  of  causes  of  action  in 

actions  arising  on  contract    

for  libel  or  slander 

for  personal  injury   

for  injuries  to  real  property ' 


PAGE. 

155 


132 
136 
199 

117 
119 

108 

45 
45 

50 
724, 749 

193 
314 
423 

314 
320 
332 

391 
392 
393 
393 
393 
393 
394 
396 
398 
398 
400 
401 
401 
402 
406 
407 
407 
408 


INDEX.  639 

.COMPLAINT — {continued):                                                       vol.  page. 

for  injuries  to  personal  property   I  409 

for  ejectment    I  408 

to  recover  chattels    I  409 

upon  claim  against  trustee    I  410 

claims  arising  out  of  same  transaction I  405,  411 

for  penalties  under  the  fisheries,  game  and  forest 

law I  402,  405 

special  instances    I  413 

against  same  person  individually  and  as  executor. .     I  414 

III  347-348 
349-350 

where  replevin  is  brought    Ill  215 

in  taxpayer's  action  to  prevent  waste Ill  452 

how  objection  of  misjoinder  taken I  417 

what  causes  may  not  be  joined  in I  415 

divorce  and  separation  cannot  be  joined Ill  270,  293 

demand   for   judgment    I  417 

what  relief  may  be  demanded I  418 

where    no    answer,    only    judgment    demanded    to    be 

granted I  418 

what  judgment  granted,  where  answer  interposed I  418 

demand  should  not  be  vague  or  hypothetical I  420 

demand,  does  not  necessarily  characterize  action I  421 

demurrer  will  not  lie  to  demand  in I  421 

costs  need  not  be  demanded  I  421 

interlocutory  and  final  judgment  may  be  demanded. ...     I  421 

where  injunction  sought,  it  should  be  demanded  in. . . .     I  422 

when  and  how  to  be  served I  422 

consequence  of  failure  to  serve I  423 

when  discovery  granted  to  enable  party  to  frame I  837 

grounds  of  demurrer  to,  see  Demurrer. 

when  dismissed  for  neglect  to  proceed II  199 

dismissal  of,  on  opening  of  counsel II  307-308 

requisites  of,  in  ejectment Ill  12-14 

in    partition    Ill  46-47 

in  action  for  dower Ill  107 

in  action  for  foreclosure  of  mortgage Ill  129-130 

in  strict  foreclosure   Ill  155 

in  action  to  foreclose  lien  on  chattel Ill  158 

in  action  for  determination  of  claim  to  real  prop- 
erty  Ill  178-179 

in   replevin    Ill  215-216 

in  action  for  divorce   Ill  269-270 

264-265 

in   action   for   separation Ill  290 

in  action  by  or  against  a  corporation Ill  319 


640  INDEX. 

COMPLAINT — {continued):                                                          VOL.  PAGE, 
in  action  by  creditor  of  decedent  against  next  of  kin 

or  legatee Ill  374-376 

in  action  by  creditor  of  decedent  against  devisee  or 

heir Ill  381 

in  judgment  creditors  action  Ill  419-421 

in  action  against  joint  stock  association Ill  440 

in  action  against  member  of  joint  stock  association, 
after  execution  against  the  association  returned 

unsatisfied Ill  442 

in  taxpayer's  action  to  prevent  waste Ill  452 

in  action  to  charge  joint  debtors  not  served Ill  462-463 

in  action  against  usurper  of  office  or  f ranchise . . . .  Ill  483,485 

486-487 
COMPROMISE: 

when  defendant  may  make  offer  of  I  768 

may  be  made  in  any  action   I  768 

when  judgment  entered  on,  will  be  set  aside I  768 

must  be  accepted  within  ten  days I  769 

offer   of    I  769 

how  made,  when  more  than  one  defendant I  770 

signature  of  party  to  offer,  how  proved I  770 

how  pioved  if  made  by  attorney I  771 

offer  of,  operates  as  stay  of  proceedings I  771 

when  plaintiff  may  make  offer I  772 

acceptance  of  offer,  how  made   I  772 

action  does  not  abate  after  acceptance  of I  772 

if  offer  refused,  cannot  be  given  in  evidence I  773 

effect  of,  upon  costs   I  773 

judgment  roll  on  offer,  may  be  amended I  771,  783 

offer  of,  in  action  for  foreclosure  of  mechanics'  lien.  .  .  .Ill  165 

whether  one  joint  debtor  can  make  offer  of,  for  all.  .  .  .Ill  456-457 

by  joint  debtor  separately   Ill  467-471 

CONDITION  PRECEDENT: 

how  alleged  in  pleading  I  328 

CONFESSION  OF  JUDGMENT: 

for  what  purpose  judgment  may  be  confessed II  755-756 

not  to  be  confessed  for  a  tort II  756 

who  may  confess  judgment II  75&-757 

married  woman  may II  756 

public  officer  may II  756 

executor  or  administrator  may II  756 

infant  or  person  of  unsound  mind  cannot II  756 

trustee  cannot II  756 

joint  debtors  may II  756 

but  not  one  joint  debtor  for  all Ill  456 


INDEX.  641 

CONFESSION  OF.  JUDGMENT— (co«i WM^(i)  :                       vol.  page. 

statement  for,  what  to  contain II  757-759 

must  contain  essential  facts  in  all  cases II  757-759 

may  refer  to  schedule  attached II  759 

must  be  signed  by  tlie  defendant  and  verified. .  II  759 

form  of  verification  on II  760 

may  be  amended II  760 

terms  of  such  amendment II  760-761 

in  what  court  judgment  may  be  entered II  761 

in  what  county  to  be  entered II  761 

how  to  be  entered II  762 

judgment  roll,  what  constitutes II  762 

effect  of  judgment  on II  762 

execution  upon II  762-763 

who  may  move  to  vacate II  763-764 

how  application  to  vacate  may  be  made II  764 

motion  made  at  special  term  on  notice II  764-765 

papers  upon  application  to  vacate II  765 

for  what  reasons  judgment  will  be  vacated II  765 

granting  of  motion  discretionary II  765,766 

amendment  may  be  allowed  upon  such  motion. .  II  765,  766 
judgment  debtor  may  be  compelled  to  amend  state- 
ment    II  766 

CONFLICTING  CLAIMS  TO  REAL  PROPERTY: 

iSee  Determination  of  Conflicting  Claims  to  ' 
Real  Property. 

CONGRESSIONAL  DOCUMENTS: 

admissible  as  evidence II  117 

CONSANGUINITY  OF  JUDGE: 

disqualifies  I     12-14 

See  Judge. 

CONSOLIDATION  OF  ACTIONS: 

when  it  will  be  ordered I  304 

who  may  move  for I  304 

when  plaintiff  may  move... I  304 

what  defendant  must  show  on  moving I         305 

what  actions  will  be  consolidated I  305 

costs  upon  consolidation I  306 

of  separate  actions  against  joint  debtors I  307 

of  actions  to  foreclose  mechanics'  liens Ill  164 

CONSTABLE: 

limitation  of  action  against ,     I  97, 100 

CONSTRUCTION  OF  PLEADINGS :    See  Pleadings. 

CONSTRUCTION  OF  WILL,  ACTION  FOR:     See  Will. 

41 


642 


INDEX. 


CONTEMPT :  vol.       page. 

how  order  served  to  bring  party  info I  276 

See  Subpoena. 

See,  also,  Subpoena  Duces  Tecum. 

answer  cannot  be  struck  out  for II  29 

punishment  for,  by  referee II    426-427 

420 

enforcement  of  judgment,  by  proceedings  for II   965-966 

certified  copy  of  judgment  to  be  served II  965 

what  judgment  may  be  enforced  by  proceedings  for  II  965 

when  non-payment  of  costs  enforced  by II  965 

discretionary   Avith  court  whether  to  enforce  judg- 
ment by II  966 

proceeding  to  enforce  judgment  by,  begun  by  order 

to  show  cause II  906 

in  supplementary  proceedings,  sec  Supplement- 
ary Proceedings. 


CONTINUANCE  OF  ACTION: 

on  death  of  sole  party 

only  made  by  motion 

rule  as  to,  in  equitable  and  legal  actions  now  the 
same 

may  be  had  on  application  of  defendant 

successors  in  interest  to  be  substituted 

court  has  only  certain  jurisdiction  to  direct 

on  motion  for,  pleading  controls  on  question  of  sur- 
vivability   

what  objections  may  be  taken  at  trial,  after 

on  substitution,  prior  proceedings  stand 

on  death  of  one  of  several  parties,  if  entire  cause  of 
action  survives 

where  cause  of  action  continues  to  surviving  plaintiff 

in  action  by  tenants  in  common  for  conversion 

in  action  of  ejectment  by  tenants  in  common 

after  death  of  defendant,  who  is  not  a  necessary 
party 

when  may  bring  in  executors  of  co-defendant 

when  executors  of  defendant  jointly  liable,  to  be  sub- 
stituted   

when  defendants  are  jointly  and  severally  liable.  . . 

where  part  of  cause  of  action  survives 

where  interest  has  been  transferred,  etc 

against  foreign  corporations 

by  and  against  public  officers 

rules    for,    in    ejectment 

rules  for.  in  partition 

application  how  made  


814 
815 

815 
816 

816 
817 

818 
818 
818 

819 
819 
819 
820 

820 
820 

820 
820 
821 
822 
824 
824 
825 
826 
827 


INDEX.  643 

CONTINUANCE  OF  ACTION— (coM^inued)  :                          vol.  page. 

notice  of    to  whom  given I  827 

supplemental  complaint,  when  may  be  ordered  on. .     I  827 
where  actions  survive,  no  suggestion  of  death  neces- 
sary       I  828 

proper  proceedings,  where  action  continues  to  sur- 
vivors       I  828 

when  cross  action  may  be  ordered  on  application  for    I  828 

CONTRACT: 

when  action  on  barred I  92 

when  injunction  granted  to  restrain  violation  of....     I  548 

CONVENTION: 

to  make  rules I  1 

CONVEYANCE: 

of  property,  when  may  be  ordered I  751 

when  may  be  read  in  evidence II  112-113 

acknowledgment  or  proof  of,  when  may  be  rebutted  II  113 

of  property  without  the  state,  how  proved II  120 

of  real  property,  action  for,  in  what  county  to  be 

brought II  128 

of  real  property  on  execution II  870 

on  judicial  sale  . Ill    141-143 

mortgages  and  assignments  to  be  filed  before Ill  141 

what  title  vests  by Ill  142 

■     effect  of,  on  lienors Ill    142-143 

COPYRIGHT: 

when  violation  of,  restrained  by  injunction I  548 

CORONERS: 

power  and  duties  of I  26 

fees  of,  when  acting  as  sheriff I  27 

limitation  of  action  against I  97, 100 

fees  of II  671 

when  execution  may  be  directed  to II  989 

CORPORATION: 

limitation  of  action  against  directors  of  domestic. ...     I  98 

of  action  against  directors  of  monied I  98 

of  action  against  foreign I  103 

of  action,  on  evidence  of  debt  of I  111 

leave  to  sue  in  action  to  dissolve I  128 

in  action  against,  directors  not  proper  parties I  147 

action  against  agent  of  for  malfeasance,  by  whom 

brought I  148 

action  by   creditor   of I  148 

action  against,  when  to  be  brought  by  people I  153 

how  summons  served  upon I  205 

III  320 


644  INDEX. 

CORPORATION— (continued)  :                                                   VOL.  page. 

remedy  for  irregular  service  of  suuimous  upon I  206 

Avben  necessary  to  prove  existence  of,  on  tlie  trial. .     I  336 

III  319 

verification  of  pleading  by  domestic I  339 

injunction  against,  vrhen  granted I  560 

against  municipal I  563 

against  religious I  562 

corporate  ordinance,  when  enforcement  of  restrained    I  563 
receiver  of,  sec  Heceivek  of  Coiu'OKAtion. 

dissolution  of,  when  abates  action I  809,  823 

when  person  having  property  of  foreign,  may  be  re- 
quired to  pay  on  attachment I  693 

judgment   against   foreign,   by   publication,   against 

what  property  enforced I  693 

actions  against  foreign,  how  continued I  824 

when  officer  of,  may  be  examined  as  party II  2-3, 17 

See  Examination  Before  Trial. 

how  production  of  books  of,  compelled  upon  trial..  II  87 

Secj  also,  Books  and  Papers. 
when  officer  of,   need   not  personally   appear  with 

books II  87 

action  against  director  of,  for  filing  false  certificate, 

where  brought II  131-132 

of  what  county  deemed  resident II  135-136 

action  to  annul,  to  be  tried  by  jury II  213 

when  required  to  give  security  for  costs II  519 

520,522 
See  Security  for  Costs. 
judgment  roll  in  action  to  annul,  to  be  filed  in  secre- 
tary of  state's  office II  683 

III  345 

order  for  trial  of  issues  in  action  against II  707-708 

III  319-320 

domestic,  defined    Ill  309 

in  what  cases  action  may  be  brought  by  or  against  do- 
mestic  corporation    Ill  309-311 

in  what  cases  action  may  be  brought  by  or  against  for- 
eign  corporation    Ill  311-315 

as  to  causes  of  action  assigned  by  foreign  corpora- 
tion to  a  resident   Ill  312 

action  against  trustee  or  other  officer  of. Ill  315-319 

for  what  relief  action  may  be  brought Ill  315-316 

by  whom  brought    Ill  316,  318 

how  trustee  or  other  officer  of,  suspended Ill  316 

nature  of  court's  jurisdiction  in  these  actions.  ..  .Ill  316-317 
statutory  provisions  do  not  apply  to  foreign   cor- 
porations   Ill  317 


INDEX.  645 

CORPORATION — (continued):                                                  vol.  page. 
when  brought  by  attorney-general,  rests  entirely  in 

his  discretion  whether  it  shall  be  brought Ill  318 

in  such  case  need  not  be  brought  on  relation  of 

private  party    Ill  . .   320 

fact  that  director  has  brought  action  for  account- 
ing against  other  directors  is  no  bar  to  the  at- 
torney-general's   action    ill  320 

complaint  in  action  by  creditor,  what  to  contain. .  .Ill  321 
when   court  will   order   suspension   of   business   of 

corporation Ill  321 

religious,  municipal,  political  and  educational  cor- 
porations excepted  from  operation  of  statutes ...  Ill  318 
complaint  in  action  by  or  against,  what  to  contain. .  .  .Ill  319 

misnomer  of,  must  be  pleaded Ill  319 

various  proceedings  in  action  by  or  against Ill  321-322 

action  to  dissolve,  when  may  be  brought Ill  322-324 

sequestrating   property   when    final    judgment   not 

paid Ill  322 

for  what  causes   dissolved Ill  322-323 

whether  sequestration  is  dissolution Ill  323 

jurisdiction  to  dissolve  purely  statutory Ill  323-324 

pendency  of  voluntary  dissolution  proceedings  no 

bar  to  Ill  324 

by  whom  action  for  sequestration  brought Ill  324-325 

takes  the  place  of  judgment-creditor's  action.. Ill  324 

action  to  dissolve,  by  whom  brought Ill  325-326 

by  attorney-general    Ill  325 

by  creditor  or  stockholder  Ill  325 

when  creditor  is  the  relator,  he  should  be  joined 

as    such    Ill  326 

other  officers  individually  liable  may  be  joined 
as   defendants,   where   action   is  brought  by 

creditor Ill  326 

338-339 

such  officers  may  also  be  sued  in  equity Ill  326-327 

pleadings  and  proceedings  in Ill  327 

not  to  be  referred  of  course Ill  327 

when  injunction  granted   Ill  327-329 

what  and  whom  restrained  by  such  injunc- 
tion   Ill  327-329 

receiver   in    Ill  330-334 

when   appointed    Ill  330 

temporary,  powers  and  duties  of Ill  330-331 

when  becomes  permanent  receiver ....  Ill  330 

subject  to  control  of  court Ill  330 

in  what  cases  can  be  appointed Ill  331 

upon  what  notice   Ill  331 


646 


INDEX. 


CORPORATION— (continued)  :  vol.       page. 

motion  for,  when  and  where  made... Ill  332 

effect  of  appointment  of Ill    332-333 

334 

what  claims  to  be  preferred  by Ill    333-334 

accounting Ill  334 

advertising    for    claims Ill    334-335 

to  be  proved  before  referee Ill  335 

duty  of  referee  on Ill  335 

when  stockholder  or  officer  not  excused 

from  testifying,  etc Ill  336 

as  to  compelling  production  of  corporate 

books  and  papers Ill  336 

a  defendant  stockholder  cannot  plead 
misnomer  or  death  of  another  de- 
defendant  Ill  336 

court  may  remedy  such  defects  by 

amendment Ill    336-337 

final  judgment  in Ill    337-339 

must  provide   for  distribution Ill    337-338 

must  adjudge  amounts  due  from 
defendant  stockholders  and  di- 
rectors   Ill    337-338 

who  regarded  as  stockholder Ill  338 

on  default,  how  taken Ill  338 

to  whose  benefit  judgment  of  disso- 
lution enures Ill  338 

no  dissolution  until  adjudged Ill  339 

effect  of Ill  339 

to  what  corporations  statutory  pro- 
visions do  not  apply Ill    339-340 

action  to  annul Ill    340-345 

when   attorney-general   must  bring Ill    340-341 

when  may  bring  upon  leave  granted Ill  341 

for  what  causes,  may  be  brought Ill    341-242 

when  legislature  may  take  away  franchise. ..  .Ill  342 

provisions  for  winding  up,  in  such  case Ill  345 

failure  to  exercise  franchise  does  not  operate  as 

annulment,  until   action    Ill    341-342 

what  suspension  of  business  warrants  forfeit- 
ure   Ill  342 

whether  action  should  be  brought  on  the  relation 

of  private  person   Ill  343 

injunction  in,  when  granted Ill    343-344 

receivership  in   Ill  344 

triable  by  jury Ill  344 

judgment  in,  final,  what  to  contain Ill   344-345 

judgment  roll,  where  to  be  filed Ill  345 


INDEX.  647 

CORPORATION— (continued)  :                                                  vol.  page. 

may  consent  to  judgment  of  dissolution  Ill  345 

action     may    be     maintained    by     attorney-general 

against,  to  test  validity  of  incorporation Ill  480-481 

supplementary   proceedings   cannot   be   had   on   judg- 
ment against,  except  where  brought  by  people... Ill  501-502 

517 

may  be  punished  for  contempt Ill  568-569 

COSTS: 

to  be  taxed  by  clerk  I  18 

when  receiver  will  be  charged  with I  130 

of  motion I  271,  281 

on  order  of  interpleader  I  313 

when  need  not  be  aslied  in  complaint I  421 

receiver,  when  liable  for I  722 

where  tender  has  been  made  I  759 

upon  offer  to  liquidate  damages I  767 

after  offer  to  compromise  I  773 

when  action  stayed  until  those  of  a  former  action 

paid , II  204-209 

on  postponement  of  trial,   see  Postponement  op 
Tbial. 
when  party  noticing  cause  for  trial,  must  pay,  if 

cause  not  moved II  258 

on  setting  aside  inquest II  263 

upon  setting  aside  default  for  irregularity II  267 

where  demurrer  interposed  to  one  of  several  causes 

of  action,  or  defenses II  273 

on  demurrer  to  whole  pleading. II  273 

on  issue  of  law,  may  be  awarded  by  interlocutory 

judgment II  275-276 

563 

on  issue  of  law,  how  fixed  and  collected II  276 

certificate  for,  when  applied  for  after  verdict II  383 

additional  allowance  may  be  applied  for  after  verdict  II  383 

upon  granting  new  trial II  501-504 

security  for,  see  SECtTRiTY  foe  Costs. 

defined  II  537 

right  to,  does  not  accrue  until  termination  of  action  II  537 

incident  to  the  action II  538 

right  to,  dependent  upon  statute II  538 

belong  to  party II  538 

by  what  statute  controlled II  538-539 

when  right  to,  is  substantial II  539 

distinction  between  interlocutory  and  final II  539-540 

right  to  award  in  void  proceedings II  540 

when  plaintiff  entitled  to,  of  course II  541-555 


G48  INDEX. 

COSTS — (continued):  VOL.       page. 

in  actions  beyuu  in  wlial  courts II  5-11 

in  actions  involving  real  property II    541-545 

when  not,  in  actions  of  trespass II  542 

when  title  to  real  property  arises II    542-545 

in  actions  to  recover  a  chattel II    545-546 

in  actions  in  which  a  justice  of  the  peace  has  no 

jurisdiction   II    54G-551 

in  actions  where^  people  are  a  party II    54G-547 

.  in  actions  for  tort II    547-548 

where  accounts  involved  exceed  four  hun- 
dred dollars II    548-550 

in      actions      against      representatives      of 

intestate II    550-551 

in  action  to  recover  money  only II    551-552 

in  such  action  amount  recovered  controls. .  II  551 

where  several  actions  brought  for  the  same  cause. .  II    552-553 

when  actions  have  been  consolidated  or  severed II    552-553 

where  several  issues  of  fact  in  same  action II    553-555 

where  defendant  not  entitled  to  costs  in  such 

case II    553-554 

when  substantial  cause  of  action  same  on  two 

or  more  separate  issues II  555 

when  defendant  entitled  to,  of  course II    555-557 

when  there  is  but  one  defendant II    555-556 

where  there  are  more  defendants  than  one....  II    556-557 

after  discontinuance  on  answer  of  title II    557-558 

when,  in  the  discretion  of  the  court II    558-567 

where  plaintiff  succeeds  against  one  of  several 

defendants II    558-559 

in  such  case  referee  cannot  award  costs II  558 

in  all  equity  cases  discretionary II    559-563 

in  actions  for  foreclosure,  discretionary II  562 

III  156 

in   actions   for  partition,   discretionary Ill  83 

where  discretionary,  party  not  entitled  to  unless 

awarded II  560 

rules  for  awarding  costs  when  discretionary II    560-561 

563 
discretionary    in   action    to    enforce   mechanic's 

lien   on   real   property II  562 

when  awarded  in  divorce  cases II    561-562 

to   appearing   co-respondent,    where   allega- 
tions of  adultery  against  not  proven Ill  272 

in   interlocutory  judgment Ill  273 

in  final  judgment Ill  282 

in  action  for  separation Ill  295 

when  awarded  in  actions  to  redeem II    562-563 


INDEX.  649 

COSTS — {continued)  :  VOL.       page. 

where  defendant  unreasonably  defends II  563 

interlocutory,  on  trial  of  issue  of  law,   discre- 
tionary    II  563 

of  a  motion,  when  granted II    563-566 

rules  for  awarding,  on  motion II    564-565 

motion,  how  collected II    565-566 

964,  965 

in  special  proceedings II    566-567 

can  only  be  awarded  when  allowed  by  stat- 
ute     II  566 

additional  allowance  cannot  be  given  in,  or- 
dinarily       II  566 

none  in  criminal  special  proceedings II  566 

on   submission   of   controversy II  567 

in  actions  brought  by  people II    568-569 

where  judgment  rendered  against  people II    568-569 

in  action  against  school  officers II  569 

in  action  against  municipal  corporation II    569-571 

what  claims  must  be  presented  and  to  whom . .  II  570 

in  actions  by  or  against  trustees II    571-573 

when  trustee  will  be  personally  charged  with II    573-574 

how  order  made  to  charge  trustee  personally II  573 

what  should  appear  to  charge  trustee  personally  II    573-574 

in  actions  by  receiver II  574 

when  executor  or  administrator  personally  charged 

with II  571,  573 

in  actions  against  executors  or  administrators II    575-579 

can  only  be  awarded  against  on  motion II  573 

what  are  actions  against  executors  or  adminis- 
trators    II  575 

what  must  appear  to  authorize  award  of  costs 

against II    575-576 

what  certificate  to  be  furnished  on  motion  for. .  II  576 

578-579 

what  presentation  of  claim  required II    576-577 

must  be  unreasonably  neglected  or  refused...  II    576-578 
failure  to  file  consent  that  claim  be  determined 

on  accounting II    576-577 

court — not  referee — to  impose  costs  against  ex- 
ecutor, etc II    578-579 

except  in  a  reference  of  a  "disputed  claim"...  II    578-579 
successful  plaintiff  entitled  to  disbursements  al- 
though costs  refused II  579 

who  chargeable  with,  where  cause  of  action  trans- 
ferred    II    580-586 

person  beneficially  interested  when  charged  with. .  II  580 

what  is  beneficial  interest   to  charge  with II    580-585 


GoO 


INDEX. 


COSTS — (continued)  :  vol.       page. 

wbc'tlier  real  piupeily  defeuding,  as  well  as  real 

party  prosecutiug,  can  be  charged 11    583-585 

motiou  to  compel  truusferee  or  third  party  to  pay..   II  585 

order  lor,  how  eutorced II    585-58G 

against  infant  plaiutiflf,   how  collected II  580 

where  offer  of  judgment  has  been  made 11    587-588 

026 

on  appeal II    589-598 

from  final  judgment II    589-590 

when  allowed,  of  course II    589-592 

to  what  courts  applicable II  589 

what   is   final   judgment 11  590 

against  municipal  corporation,  recoverable  with- 
out presentation  of  claim II  590 

how  awarded  when  each  party  appeals II    590-591 

how  awarded  where  more  than  one  defendant..   II  591 
on  exceptions  directed  to  be  heard  in  tlie  first  in- 
stance     II  591,  612 

when  allowed,  of  course,  matter  of  right II  591 

construction  of  award  by  appellate  court II    591-592 

593 

when  discretionary II    592-596 

when  new  trial  is  directed II   592-593 

meaning  of  words  "cost's  to  abide  event" II  592 

meaning  of  words  "  costs  to  appellant  to  abide 

event " II    593-594 

in  equity  actions  discretionary II    593-595 

award  of  costs  only  applies  to  court  by  which 

made II    593-594 

when  neither  party  will  be  charged  with II  594 

where  several  respondents  or  appellants II    594-595 

where  judgment  aflirmed  in  part  and  reversed  in 

part II  595 

from  decree  of  surrogate's  court II    595-596 

from  interlocutory  judgment  or  order II    596-598 

on  appeal  from  order  granting  or  refusing  new 

trial II    596-598 

617 

on  appeal  from  order  refusing  new  trial II   596-598 

from   both   judgment   and   order  denying  new 

trial,  no  costs  of  order  given II    596-597 

in  special  proceedings II  598 

from  justice's  court  to  county  court  on  questions 

of  law II    598-599 

where  new  trial  is  had  in  county  court II    599-602 

certificate  for,   when  required II    602-604 


INDEX.  651 

COSTS — {continued)  :  VOL..       page. 

amount  of H    604-619 

before  notice  of  trial II    604-605 

for  each  additional  defendant  served II    604-605 

for  procuring  appointment  of  guardian II  604 

for  procuring  order  of  publication II  605 

for  procuring  injunction  or  order  of  arrest II  605 

after  notice  and  before  trial II    605-606 

on  taliing  depositions II    606-607 

for  drawing  interrogatories II  607 

for  trial  of  issue  of  law II    607-608 

for  trial  of  issue  of  fact  or  assessment  of  dam- 
ages, etc II    608-610 

for  making  and  serving  case II  610 

for  maliing  and  serving  amendments II  610 

of  motion  for  new  trial  on  case II    610-612 

on  application  for  judgment  on  special  verdict.  II    610-612 

on  motion II  565,  612 

where  new  trial  is  had  or  assessment  of  dam- 
ages   etc II  612 

term  fees II    612-615 

when  cause  necessarily  on  calendar II   612-614 

for  what  term  fees  not  allowed II    614-615 

on  appeal  to  supreme  court  or  appellate  division  II    615-617 

from  order  of  inferior  court II  616 

on  appeal  from  final  order  in  special  pro- 
ceedings    II  617 

on  appeal  to  court  of  appeals II    617-618 

on  settlement II  618 

costs  on  granting  favor  cannot  be  taxed  again II    618-619 

additional  allowances II    619-632 

not  provided  for  as  to  special  proceedings,  generally  II  566,  623 
may  be  granted  where  offer  of  judgment  refused  or 

accepted   II      588 

when  they  are  a  matter  of  right •  II    619-621 

in  what  actions II    619-621 

amount  of II  619 

620,  621 

on  settlement  of  action II    619-620 

in  action  of  foreclosure II  619,  620 

only  granted  where  cost's  awarded  by  final  judg- 
ment    II  620 

may  be  taxed,  of  course 11  621 

how  value  of  property  ascertained II  621 

when  matter  of  discretion II    622-632 

in  action  for  foreclosure II  622,  623 

not  granted  in  submission  of  controversy II  623 

nor  in  divorce  cases II  623 


052  INDEX. 

COSTS —  { con  tinued )  :  vol.       page. 

is  allowed  in  actions  for  construction  of  a  will. .  II    623-624 

in   action   for   partition II  623,624 

in  difficult  or  extraordinary  action II  623 

624-626 

what  is  a  defense  in  sucli  actions II  624 

only  granted  wlieu  party  entitled  to  full  costs.  II  626 

when  granted  and  when  refused II    626-627 

on  what  amount  estimated II    627-629 

amount  of  allowance II  629 

application  for,  must  be  made  to  court II  629 

to  what  court  to  be  made II    629-630 

must  be  made  before  adjustment  of  costs II  630 

papers  on  application II  631 

review  of  grant  or  denial  of  allowance II   631-632 

disbursements II    632-640 

See  DiSBUUSEMENTS. 

increased  cost's,  when  allowed II    640-645 

See  Increased  Costs. 
taxation  of,  see  Taxation  of  Costs. 
how  amount  of,  established  on  tender  in  foreclosure.III  137 

in  action  for  foreclosure  of  mechanics'  liens Ill  168 

surrogate  may  allow,  on  determination  of  disputed 

claim Ill  359 

in  reference  to  hear  disputed  claims  against  deced- 
ent's estate .Ill  369 

in  action  by  creditor  of  decedent  against  next  of  kin 

or  legatee  Ill  376 

in  action  against  member  of  joint  stock  association, 
after  execution  against  the   association  returned 

unsatisfied Ill  442 

in  taxpayer's  action  to  prevent  waste Ill  456 

in  action  to  charge  joint  debtors  not  served Ill  466 

in  action  against  usurper  of  office  or  franchise. ..  .Ill    495-496 
in  supplementary  proceedings  Ill    581-583 

COUNSEL: 

absence  of,  when  ground  to  postpone  trial II  252 

summing  up  by    II  353 

See  Trial  by  Jury. 

COUNSEL  FEES: 

See  Matrimonial  Actions. 

COUNSELLOR: 

See  Attorney. 
COUNTERCLAIM: 

of  title  to  real  property,  when  made I  83 

effect  of  discontinuance  of  action  on,  under  statute  of 

limitations I  109 


INDEX.  653 

COlJl\TERCL,AlM—{contin'ued):                                                vol.  page. 

cause  of  action  barred  by  statute,  cannot  be  set  up  as.  .      I  114 

defense  of  statute  of  limitations,  must  be  pleaded....     I  117 

each,  to  be  separately  stated  in  pleading I  331 

what  is    I  439 

distinction  between  set-off,  recoupment,  and I  439 

construction  of  phrase  "  must  tend  to  diminish  or  de- 
feat plaintiff's  recovery "  I  440 

must  always  contain  cause  of  action I  441 

must  be  against  all  plaintiffs I  442 

when  must  belong  to  all  defendants I  442 

must  belong  to  defendant  at  commencement  of  action .  .      I  443 

meaning  of  phrase  "transaction  set  forth  in  complaint".      I  443 

meaning  of   phrase   "subject  of   action" I  446 

what  may  be  set  up  as,  in  action  on  contract I  448 

against  assignee  of  contract I  449 

against  transferee   of   over-due   paper I  451 

against  one  litigating  in  representative  capacity. . .     I  451 

in  matrimonial  actions    I  453 

not  allowed  against  people   I  453 

when  defendant  must  plead   I  453 

must  be  pleaded  as  such I  454 

how  far  bar  to  another  action  I  455 

judgment  on I  455 

affirmative  judgment  on,  must  be  demanded  in  answer.     I  456 

when  plaintiff  may  reply  to  I  457 

grounds  of  demurrer  to,  see  Demukbeb. 

right  of  defendant  to  provisional  remedy  on  pleading.  . .      1  753 

discontinuance  after  answer  of II    176-179 

mode  of  trial,  when  interposed II    218-219 

405-406 
on  inquest,  see  Inquest. 

default  where  there   is    II  266 

in  matrimonial  action    Ill  275,  291 

in  reference  of  disputed  claim Ill  366 

in  action  by  .creditor  of  decedent  against  heir   or  de- 
visee     Ill  381 

COUNTY: 

how  to  sue  and  be  sued   I  156 

must  be  stated  in  complaint  in  action  in  supreme  court.      I  393 
See,  also.  Complaint, 

COUNTY  CLERK: 

certificate  of,  as  to  payment  of  capital  stock  of  corpora- 
tion, evidence   II  97 

fees  of,  in  action   II    665-666 

to  discharge  docket  of  judgment  on  filing  certificate  of 

reversal  or  satisfaction    II  706 


654  INDEX. 

COUNTY  COURT:                                                                          vol.  page. 

terms  of  I  10 

always  open  for  the  transaction  of  ex  parte  business  . .     I  10,  77 

county  clerk  to  be  clerk  of I  16 

how  constituted  I  71 

jurisdiction  of    I  71 

no  jurisdiction  over  two  thousand  dollars I  71 

jurisdiction  of,  how  determined   I  72 

where  jurisdiction  exists  same  as  supreme  court I  73 

mandates  of,  to  be  enforced  as  in  supreme  court I  73 

may  send  mandates  into  another  county I  73 

court  of  limited,  and  not  general  jurisdiction I  73 

special  cases  of  jurisdiction  of I  73 

when  justice  of  supreme  court,  may  make  orders  in ... .     I  78 

place  of  trial  of  action  brought  in,  how  changed II  148-149 

when  may  require  security  for  costs II  520 

costs  in,  on  appeal  from  justice's  court  on  question  of 

law II  598-599 

costs  in,  on  appeal  where  new  trial  had  in II  599-602 

when  judgment  of  justice  of  the  peace  becomes  judg- 
ment of II  687 

appeals  from,  to  appellate  division II  876-880 

appeal  to,  from  justice's  court II  936-962 

See  Justice  of  the  Peace. 

has  jurisdiction   of  partition Ill  33 

of  action  for  admeasurement  of  dower Ill  102 

of  action  for  foreclosure  of  mortgage Ill  127 

of  action  for  enforcement  of  mechanics'  lien Ill  162 

has  no  jurisdiction  of  action  for  determination  of  con- 
flicting claims  to  real  property Ill  174 

nor  action  of  waste Ill  188 

has  jurisdiction  of  corporations Ill  311 

COUNTY  JUDGE: 

power  of,  in  action  in  county  court I  73 

when  has  power  of  justice  of  supreme  court I  77 

limitation  of  power  to  make  order I  78 

when  cannot  make  order  to  show  cause I  78 

when  may  entertain  supplementary  proceedings Ill  519,520 

COUNTY  TREASURER: 

when  leave  granted  to  sue  official  bond  of I  126 

when  supervisors  parties  plaintiflf  in  action  on  bond  of.      I  156 

COURT: 

records  of,  see  Records. 

place  of  trial  of  action  brought  in  local,  how  changed.   II  147-150 

what  actions  triable  by,  see  Trial. 

fees  of  clerks  of    II  663-665 


INDEX.  655 

COURT — {continued):                                                                    vol.  page. 

what,  has  jurisdiction  in  ejectment    Ill  3 

of  partition   Ill  33 

of  admeasurement  of  dower Ill  102 

of  foreclosure    Ill  127 

of  action  for  enforcement  of  mechanics'  liens Ill  161-162 

of  action  for  determination  of  conflicting  claims  to 

real   propeity    Ill  174 

of  action  of  waste    Ill  188 

of  matrimonial   actions    Ill  245-246 

COURT  OF  APPEALS : 

where  rules  silent,  practice  in  court  of  errors  followed .  .   I  2 

terms  of I  6,  7 

jurisdiction  of I  60 

what  judgments  appealable  to   I  61,  62 

what  orders  appealable  to I  61,  62 

jurisdiction  of,  not  limited  by  amount I  61,  63 

how  review  secured  in,  of  appellate  division  decision  on 

appeal  from  interlocutory  judgment  on  demurrer....   II  277 
appeal  lies  to,  from  appellate  division  order  on  motion 

for  new  trial  made  there II  511 

costs  on  appeal  to    II  617-618 

fees  of  clerk  of    II  662-663 

security  necessary  to  perfect  appeal  to II  791 

when  motion  to  dismiss  appeal  to,  ex  parte II  828 

for    failure    to    give   undertaking II  828 

not  granted  for  failure  to  notice  cause II  828 

appeal  to,  from  an  order  possibly  made  on  facts,  dis- 
missed     II  829. 

dismissal  of  appeal  to,  for  failure  to  serve  process  on  re- 
spondents     II  829 

dismissal  of  appeal  to,  for  failure  to  give  stipulation  for 

judgment  absolute   II  829 

when  re-argument  granted  by   II  831-832 

appellate  division  order  granting  restitution,  etc.,  not 

reviewable  in II  834 

what  is  appealable  to    II  837-850 

generally II  837-840 

from  judgments  or  order  finally  determining  actions 

or  special  proceedings    II  840-844 

"  judgment ''   refers  to   actions   and  "  orders  " 

to  special  proceedings  only  II  840 

what  is  final  judgment   II  840-841 

what  is  final  order  in  special  proceedings....   II  841-844 

from  orders  granting  new  trials    II  844-845 

only  applies  to  order  granting  new  trials  on  ex- 
ceptions     II  844, 856 


656  INDEX. 

COURT  OF  APPEALS — {continued)  :  vol.       page. 

stipulation    for    judgment    absolute    must    be 

given II    844-845 

appeals  allowable  by  permission  only II    845-850 

form  of  permission,  as  to  certification  of  ques- 
tions        II    845-846 

where  permission  necessary,  appeal  without  it 

is  nullity  II  846 

where  questions  necessary  to  be  certified,  how 

framed    II    846-847 

from  judgments  or  orders  not  finallj^  determ- 
ining actions  or  special  proceedings II  847 

in  actions  begun  in  a  court  other  than  supreme 
court,  court  of  claims,  county  court,  or  sur- 
rogate's  court    II    847-848 

from   judgments    of   unanimous    affirmance    in 

certain  excepted  cases    II    848-850 

what  are  excepted  actions II    848-849 

when  permission  granted II    848-849 

no  review  as  to  whether  there  is  any  or  suf- 
ficient evidence  to  sustain  a  verdict  or  de- 
cision,    after     unanimous     affirmance,    even 

though  that  question  certified II  849,  852 

discretionary    determinations    not    reviewable, 

though   certified    II  849 

what  is  unanimous  affirmance II    849-850 

what  may  be  reviewed  in   II    850-857 

only   questions    of   law    II  850, 851 

whether  there  is  any  evidence  to  sustain  a  material 

fact  is  question  of  law II  855 

nn  exercise  of  discretion  reviewable  in II  560,  856 

no  unanimous  decision  of  the  appellate  division  that 
there  is  evidence  tending  to  sustain  finding  of  fact 

or    undirected    verdict,    reviewable II  850 

851-852 
what  can  be  reviewed  after  unanimous  affirmance.   II  853 

prohibition  as  to  unanimous  affirmance  applies  to 

special   proceedings    II  853 

prohibition  does  not  apply  to  unanimous  reversals.   II  854 

judgment,  or  order  granting  new  trial,  after  trial 
by  court  or  referee,  presumed  to  be  reversed  on 
law  unless  contrary  appears  in  the  record  body  of 

judgment  or  order   II  850,  853 

what  may  be   reviewed  where  such   judgment   or 

order  states  no  ground II    853-854 

presumption  applies  to  orders  in  special  proceed- 
ings     II  854 


INDEX.  657 

COURT  OF  APPEALS — (continued):                                        VOL.  PAGE, 
prestimption  does   not  apply  to  reversals   in   jury 

cases II  854 

application  of  presumption  where  decision  in  "short 

form  ' II  854 

presumption  does  not  apply  where  necessary  finding 

is  beyond  pleadings  or  evidence II  854 

presumption  does  not  apply  to  nonsuit II  854-855 

how  reversal  on  facts  shown  II  855 

court  of  appeals  can  look  into  record  to  ascertain 

if  reversal  was  on  the  facts,  when  order  so  states .  II  855 
when  only  interlocutory  judgment,  or  order  refusing 
new  trial,  reviewable  on  appeal  from  final  judg-' 

ment II  850-851 

grounds  of  appellate  division  determination  will  not 

be  ascertained   from   opinion    II  856 

save  where  expressly  referred   to  in  certifica- 
tion  of   question    II  856 

instances  where  it  is  material  to  secure  review  in 
court   of   appeals   to   have  grounds   of   appellate 

division  determination  appear  in  order II  856-857 

that  order  granting  new  trial  was  not  on  facts .  II  856 

that  determination  was  not  discretionary   ....  II  856-857 

when  appeal  to  be  taken  to II  857-859 

from  judgments   II  857,  858 

from   order    II  857,  858 

where  leave  to  appeal  necessary II  858 

from  final  judgment,  after  aflBrmance  by  appellate 

division   of  interlocutory   judgment II  858-859 

how  appeal  to  be  taken   11  859 

return    on    appeal    to    II  859-861 

of  what  to  consist    II  859,  860 

to  be  made  by  appellant   II  859-860 

when   respondent  may   make    II  860 

to  be  filed  by  clerk   II  860 

notice  requiring  return  to  be  filed   II  860 

when  appeal  dismissed  for  want  of  prosecution  for 

failure   to   file    II  860 

what  to  contain   II  860 

to  be  certified  by  the  clerk,  or  stipulated II  860-861 

extension  of  time  to  file   II  861 

further  return,  how  obtained   II  861 

appeal  will  not  be  dismissed  for  defective II  861 

remedy  for  defective,  by  motion  to  correct II  861 

case  to  be  made  by  appellant   II  861 

what  to  contain   II  861 

42 


658  INDEX. 

COURT  OF  APPEALS— (continwed)  :                                       vol.  page. 
when  statement  of  facts  to  be  made  by  appellate 

division II  861-862 

how  cases  and  points  to  be  printed II  862-863 

cases  to  be  served  by  appellant II  863 

effect  of  failure  to  serve II  863 

how  many  copies  required  II  863 

same  attorneys  and  guardians  in,  as  in  court  below,  etc.  II  864 

notice  of  argument,  how  and  when  to  be  served II  864,865 

867 

calendar  of,  how  to  be  made,  preference,  etc II  864,  866 

appeal  from  order,  for  what  day  to  be  noticed II  866 

how  to  be  heard   II  866 

motion  when  to  be  made   II  866-867 

points  to  be  furnished  on  appeal   to,   when   filed  and 

served,    form,    etc II  867-868 

day  calendar,  of  what  to  consist   II  869 

reservation  of  causes  on    II  869-871 

practice  as  to  calendar,  where  party  dies  after  appeal.  .II  871 

argument    of    appeal II  871-872 

time  allowed  on  argument    II  87 1 

judgment  not  reversed  by  default   II  872 

practice  upon  affirmance  by  default   II  872 

decisions,   when   handed   down II  873 

opinions  to  whom  delivered    II  873 

judgment  to  be   remitted  to  court  from  which   appeal 

taken II  873 

remittitur,  what  to  contain   II  873 

to  be  filed  with  clerk  of  court  below II  873-874 

practice  in  court  below  on  remittitur   II  874-875 

how  to  be  returned  to  court  of  appeals II  874 

appeal  to,  in  action  to  foreclose  mortgage   Ill  139 

COURT  OF  CLAIMS: 

court  of  record  I  4 

continuation  of  board  of  claims   I  4 

terms   of    I  11 

COURTS  OF  RECORD: 

enumerated I  3 

may  make   rules    I  3 

sittings  of,  must  be  public 1  4 

cannot  be  open  to  transact  business  on  Sunday 1  4 

formerly  not  open  on  election  or  town  meeting  day.  ...      I  6 

may  be  open  on  holidays  other  than  Sunday I  6 

must  be  held  as  appointed   1  8 

extraordinary  terms  of,  how  appointed I  8 

actions  in,  may  be  tried  elsewhere  than  at  court  house.  .      1  9 

liow  adjourned   I  H 


INDEX. 


659 


COURTS  OF  RECORD— (coMfrnwed):  v 

how  adjourned,  in  absence  of  judge   

judges  of,  not  to  practice   

seals  of   

duties  of  clerk  of    

will  correct  mistakes  of  officer   

extent  of  control  over  attorney   

jurisdiction  of    

only  within  the  state   

restricted    by    constitution    and    laws    of    United 

States  

intention  to  deprive  of,  not  presumed 

in  suits  in  which  other  governments  are  parties .  . 

in  bankruptcy  cases 

in  suits  by  and  against  foreign  corporations 

on  causes  of  action  arising  without  the  state .... 
for  specific  performance  of  contract  to  convey  lands 

without  the  state    

in  certain  cases,  limited    

in  patent  cases    

as  to  lands  outside  of  the  state   

as  to  penal  laws  of  another  state 

on  habeas  corpus  by  United  States  soldier 

of   property   of   non-resident,   attached   within   the 

state  

in   ejectment,    against   person   claiming   as    United 

States  officer  

jurisdiction  of  court  of  appeals,  see  Cotjet  of 

Appeals. 
jurisdiction    of    supreme   court,    see    Supbeme 

Court. 
power  of  judges  out  of,  see  Jxtdges. 

name  of,  must  be  specified  in  complaint I 

power   of,   to   relieve   against   mistakes,   not   given   by 
statute  I 


PAGE. 

11 

15 
16 

16,18 
18 

30,33 
55 
55 

55 
56 
56 
56 
56,59 
56 

57 
57 

58 
58 
59 
59 

59 

60 


393 

797 


COURTS  WHICH  HAVE  BEEN  ABOLISHED: 

enumerated I         3, 68 

jurisdiction  of,  now  in  supreme  court 13,  63,  68 

judges  of,  now  supreme  court  justices I        3,  63 

described I  68 

leave  to  sue  on  judgments  taken  in I  122 

COVENANTS : 

when  violation  of,  will  he  restrained  by  injunction  ....     I  554 

CREDITOR: 

when  one  may  sue  for  all I  159 

See,  also.  Judgment  Creditob  and  Judgment 
Creditoe's  Action. 


GCO  INDEX. 

CREDITOR  OF  DECEDENT:  vol.       page. 

action  by,  against  next  of  kin,  legatee,  heir  or  devisee. Ill    369-385 
/Sec,  also,  Deceuknt. 
CRIMINAL  ACTION: 

defined I  80 

CROSS-EXAMINATION.    See  Trial  by  Juky. 

D. 

DAMAGES: 

matters  in  mitigation  of,  how  pleaded I  438 

sustained  by  injunction,  to  what  extent  plaintiff  liable 

for  ...  ' I  599 

how  such  damages  ascertained I  601 

when  offer  to  liquidate,  may  be  made I  767 

effect  of  acceptance  or  refusal  of  offer  to  liquidate I  767 

assessment  of,  upon  default   II  266 

when   court  may   direct   to   be   assessed   upon   issue   of 

law II  275 

application  for  increased,  after  trial  by  jury II  383,  734 

on  trial  by  court,  decision  should  specify  sum  allowed 

as  single,  and  direct  judgment  for  increased II  394 

plaintiff  who  recovers  increased,  not  thereby  entitled  to 

increased  costs   II  643 

nominal,  when  new  trial  on  ground  that  the  verdict  is 

against  the  weight  of  evidence II  496-497 

motion  for  new  trial  for  insufficient  or  excessive II  497-499 

when  court  may  require  party  to  remit II  497 

assessment  of,  on  application  for  judgment II  719-722 

what,  may  be  recovered  in  ejectment  Ill  8,  9 

See  Ejectment. 

for  withholding  dower,  when  may  be  recovered Ill  104-106 

107 
judgment    in    action    for    determination    of    conflicting 
claims  to  real  property  must  award,  to  a  successful 

defendant Ill  183 

in  action  of  waste   Ill  191, 192 

in  action  for  timber  cut  by  trespasser Ill  199-201 

in   action   against  forcible   ejectors    Ill  201 

DEATH : 

of  occupant  does  not  affect  right  to  possession  of  real 

property I  89 

judgment   may   be   rendered   after,   on   verdict   rendered 

before I  830 

when  action  for  personal  injury  docs  not  abate  by....      I  830 

verdict,  report  or  decision  after,  void  I  831 

motion   cannot  be  decided  after    I  831 

See,  also.   Continuance  of  Action. 


INDEX.  661 

DECEDENT:  .                                                                                    ^^^_  ^^^^ 
distribution  in  partition,  where  estate  of,  interested ...  Ill  86 
action  by  creditor  of  decedent  against  next  of  kin,  leg- 
atee, heir,  or  devisee Uj  369-385 

when  the  action  lies HI  369-373 

meaning  of  the  term  "  next  of  kin  " m  370 

right  to  bring  action  against  next  of  kin  or  legatee 

does  not  arise  by  statute   HI  370 

must  be  pursued  as  directed  by  the  code HI  370 

right    to    bring    action    against    heirs    is    purely 

statute-given    HI  370^  373 

heirs   or   devisees   are  not   joint  debtors,   so  as   to 

allow  action  against  them  as   such HI  457 

nature  of  the  debt  that  will  sustain  the  action  ..III  370-371 

action  is  of  equitable  cognizance HI  371 

what  statute  of  limitation  applies  to HI  371 

381,  383 

when  short  statute  of  limitation  applicable. .  .Ill  359,371 

whether  one  creditor  can  sue  for  all HI  371 

no  defense  to,  that  creditor  has  taken  note  of 

executor HI  371 

no  objection  to  maintenance  of  action  that  there 

has  been  no  accounting   IH  371 

what  is  necessary  to  show  to  maintain  the  action.  .Ill  371-372 
action  originally  brought  against  decedent,  cannot 
be  revived  into  one  under  the  code  against  next 

of  kin,  etc HI  3^2 

the  action  against,  does  not  affect  liability  of  heir 

or  devisee  for  debt  charged  on  real  estate HI  372 

persons  liable  in  several  capacities  may  be  charged 

I" Ill  372 

child  born  after  making  of  will  may  maintain  the 

action HI  373 

regulation  with  regard  to  action  against  next  of 

kin  and  legatees    HI  373.373 

one,  or  all,  may  be  sued  HI  373 

what  next  of  kin,  and  what  legatee  liable  ....  Ill  373-374 
how  maintained  when  some   legatee  preferred 


to  others 


•III  374 


heirs  or  devisees  cannot  be  joined  as  defendants 

with  next  of  kin  and  legatees HI  374 

remedy  against  next  of  kin  and  legatees  must 
be  exhausted  before  heirs,  etc.,  can  be  pro- 
ceeded against    HI  3^4^ 

action  is  regarded  as  brought  on  debt  of  de- 

c^d^"<^ Ill  374 

what  should  be  alleged  in  complaint   m    374.375 


662  INDEX. 

DECEDENT— (con/»ntrrf)  :                                                          vol.  pagi. 
each  legatee  liable  only  for  his  own  share  of 

the  debt Ill  376 

such   liability   limited   by  the    assets   received 

by  the  legatee    Ill  375 

defendant's  pleadings    Ill  375 

proceedings  in  the  action    Ill  375 

default  judgment  only  had  on  application 

to  court   Ill  375 

not  triable  by  jury  Ill  375 

what    plaintiff    must    show    to    maintain    the 

action Ill  375 

in  action  against  preferred  legatee Ill  376 

judgment  in  such  action Ill  376 

how  taken  on  default   Ill  375 

must  apportion  recovery    Ill  376 

co^^ts   in    Ill  376 

regulations  with  regard  to  action  against  devisees 

and  heirs  at  law  Ill  377-384 

to  what  extent  devisees  or  heirs  at  law  are 

liable Ill  377-378 

action  must  be    brought    jointly    against    all 

heirs,  or  all  devisees    Ill  378 

executors   cannot  be   joined  with   heirs  or  de- 
visees as  defendant   Ill  378 

action  against  heirs  or  devisees  cannot  be  main- 
tained at  same  time  as   action  against  next 

of  kin  or  legatees Ill  378 

what  must  appear  to  entitle  creditor  to  main- 
tain the  action   Ill  379 

where   proceeding   is   pending   to   sell    de- 

ceedent's  real  property  for  debts Ill  379-380 

in  action  against  heir   Ill  381,  382 

in  action  against  devisee Ill  381-382 

complaint  in,  what  to  contain   Ill  380-381 

what  may  be  set  up  in  answer  in Ill  381 

defense  that  there  are  unsatisfied  demands 

of  class  preferred  over  plaintiff's Ill  384-385 

action  not  delayed  by  reason  of  infancy  of  any 

of  the  parties   Ill  382 

judgment Ill  383-384 

how  entered  and  docketed   Ill  383 

separate,  to  be  entered  against  each   de- 
fendant   Ill  383 

when  should  direct  collection  of  debt  out 

of  real  property  descended  or  devised.  .  .Ill  383 

lien  of,  on  land  descended  and  aliened. Ill  383-384 

preference  of  debts   Ill  384 


INDEX.  663 

DECEDENT'S  ESTATE: 

See  Executors  and  Administrators  and  De- 
cedent. 
DECISION: 

of  issue  of  law,  see  Issues. 

on  trial  of  issues  of  fact  by  court,  see  Trial  of  Issues 

OF  Fact  by  the  Court. 
exception  to,  Ditto. 
in  ejectment,  see  Ejectment. 
DECREE:  VOL.       page. 

of  surrogate's  court,  appeal  from   II    917-935 

See  Surrogate's  Court. 
DECREE  NISI :     See  Matrimonial  Actions. 
DEFAULT: 

when  attorney  may  open  I  40 

on   contested   motion    I  270 

when  may  be  taken   II    265-266 

270 

when  taken  by  party  not  serving  notice  of  trial II  265 

when  one  of  several  defendants  may  take   II    265-266 

proof  upon,  where  affirmative  relief  asked  by  defendant..  II  266 

waiver  of  right  to  trial  by  jury  on  , II  266 

when  case  may  be  sent  to  referee  upon II  266 

assessments  of  damages  upon    II  266 

opening  of,  for  irregularity   II    266-267 

costs  upon   ,. . . ,   II  267 

terms  on  opening  for  favor  II    267-268 

no  appeal  lies  from  judgment  or  order  entered  by II  784,  893 

no  reference  on,  in  divorce  case  II    411-412 

judgment  by,  see  Judgment. 
See,  also.  Inquest. 

in  ejectment,  when  opened '.  .Ill  22 

proceedings  on,  in  partition Ill        51-55 

in  action  for  admeasurement  of  dower Ill  108 

in  action  for  foreclosure  of  mortgage Ill    130-131 

in  action  for  determination  of  conflicting  claims 

to  real  property Ill  181 

in  action  of  nuisance Ill  197 

in  action  to  annul  a  marriage Ill  260,  2G1 

in  action  of  divorce Ill    270-271 

272 

in  action  for  separation Ill  293 

in  action  for  dissolution  of  corporation Ill  338 

In  action  by  creditor  of  decedent  against  next  of 

kin  or  legatee Ill  375 

In  action  to  determine  the  validity  of  probate 

of  will Ill  399 

in  judgment  creditor's  action Ill  428 


664 


INDEX. 


DEFENDANT: 

wheu  may  defeud  as  poor  persou 

■who  may  be  joined  as 

in  actions  against  stockholders  or  directors  of  cor- 
porations   

against  trustees  for  filing  false  report 

in  actions  against  stockholders  of  corporations.... 

when  people  may  be 

jointly  or  severally  liable,  how  to  be  sued 

in  actions  uu  written  instruments 

in  actions  fur  tort,  how  joined 

severally  liable,  proceedings  against 

who  must  be,  in  ejectment 

when  person  claiming  title  may  be  joined  as,  in  eject- 
ment   

who  should  be,  in  partition 

when  creditor  may  be  in  partition 

unknown,  how  served  in  partition 

distribution  of  proceeds  where  unknown  defend- 
ant in  partition II 

who  must  be,  in  action  for  dower 

II 

in  action  for  foreclosure 

parties   liable   for  payment  of  mortgage,    may   be 

joined,  as 

in  action  to  compel  determination  of  claim  to  real 
property  

who  may  be,  in  action  for  waste 

who  may  be  joined  as,  in  action  for  a  nuisance 

where  unknown,  how  to  be  designated 

when   true   name   may   be   inserted 

must  be  allegation  that  name  is  unknown 

when  infant  is,  see  Infant. 

service  of  summons  upon 

See,  also,  Summons. 

when  allowed  to  defend,  after  service  by  publication 

when  may  appear,  though  not  served  with  summons 
See,  also,  Appearance. 

when  must  serve  answer 

time  to  answer  of,  when  arrested 

when  may  file  notice  of  pendency  of  action 

when  may  move  to  dismiss  complnint  for  neglect.  . . 

when  must  serve  copy  of  answer  on  co-defendant.  . 

charged  with  fraud,  when  not  excused  from  verify- 
ing pleading 

pleadings   on   part   of 

when  must  plead  counterclaim 

when  may  move  to  vacate  warrant  of  attachment.  . 


I'ACiE. 

137 
139 

147 

149 

149 

155 

IGl,  1G4 

1G2, 1G4 

163,  165 

164 

166 

169 
172 
174 
174 

87 

174 

103-104 

176 

177 

178 
179 

180 
180 
181 
181 

198 

228 
334 

235 
236 
240 
314 
3.34 

337 
425 
453 
673 


INDEX.  665 

DEFENDANT — (continued)  :  VOL,       page. 
when  discharged  from  arrest,  on  giving  bail,  or  de- 
posit       I  525 

undertaking  on  attachment,  when  delivered  to I  695 

after    attachment    vacated,    substituted    as   plaintiff 

in  place  of   sheriff I  695 

right  of,  to  provisional  remedj'  on  pleading  counter- 
claim       I  587, 753 

See  Satisfaction. 

when  ma  J-  make  offer  to  compromise I  768 

when  assignee  of.  may  be  substituted  in  action I  823 

discovery  by,  see  Discovery  of  Books  and  Papers. 

when  may  demand  change  of  place  of  trial II    153-154 

discontinuance  after  appearance  by II  174 

rights   of,   after  discontinuance II  198 

separate  trial  between  plaintiff  and  one  of  several.  .   II  222,223 

when    separate,  must  serve  notice  of  trial II  234 

notice  by,  of  demand  of  judgment  for  return  in  re- 
plevin     II  237 

rights  of,  on  inquest II  261 

when  may  take  default II    265-266 

when  compelled  to  elect II    303-304 

opening  by,  when  made II  308 

when    additional,    brought    in II    330-.331 

cannot  be  compelled  to  give  security  for  costs II  520 

when  entitled  to  costs  of  course II    556-557 

See  Costs. 
when  entitled  to  notice  of  application  for  judgment.   II    710-712 
when  maj'  serve  demand  of  notice  for  application 

for  judgment II    710-712 

what  admitted  by  failure  of,  to  answer II    718-719 

in  ejectment,  who  must  and  may  be Ill        10-11 

vendee  of  real  property Ill  7 

occupant Ill       10, 11 

in  partition,  who  must  and  may  be Ill        42-45 

in  action  for  admeasurement  of  dower Ill    103-104 

in  action  for  foreclosure  of  mortgage Ill  128 

in  action  for  determination  of  conflicting  claims  to 

real  property Ill    177-178 

in  action  of  waste .  .  Ill    190-191 

in  action  of  nuisance Ill  196 

in  action  by  creditor  for  sequestration  of  corpora- 
tion, etc Ill  326 

338-339 

executors  or  administrators Ill    352-353 

in  action  to  establish  a  will,  who  should  be Ill  388 

in  action  to  determine  validity  of  probate  of  will.  . .  .Ill  398 

in  judgment  creditor's  action Ill    416-418 


66G 


INDEX. 


DEFENDANT— (confttMi^d)  :                                                      vol.  page. 

in  taxpayer's  action  to  prevent  waste Ill    453-154 

in  action  against  usurper  of  office Ill    477-478 

480-481 
481-482 
DEFENSE: 

cause  barred  by  statute  of  limitation  cannot  be  set 

up  as  1  114 

of  statute  of  limitation,  must  be  pleaded  to  be  avail- 
able    I  117 

each,  to  be  separately  stated  in  pleading I  331 

dilatory,  must  be  verified I  335 

sham,  what  is I  382 

may  be  stricken  out I  381 

when  ansAvor  not  stricken  out  as I  382 

defendant  may  interpose  all,  in  one  answer I  436 

need  not  be  consistent I  436 

when  defendant  required  to  elect  between I  437 

any,  existing  at  time  of  answer  may  be  pleaded. ...  I  437 

partial,   may   be   pleaded I  437 

what   is  partial I  438 

what  may  be  interposed,  in  action  against  bail I  536 

In  action  of  ejectment Ill  14-16 

in.  action  against  joint  stock  association Ill  437,  438 

DEFICIENCY: 

on  foreclosure,  see  Foreclosure  of  Mortgage. 

DELIVERY  OF  PROPERTY: 

when  may  be  ordered 1  751 

DEMAND: 

limitation  of  action,  where  demand  necessary I  112 

DEMURRER: 

cannot  be  interposed  to  demand  for  judgment I  421 

what  it  is I  462 

when  it  lies I  462 

grounds  of,  to  complaint I  461 

that  the  court  has  no  jurisdiction I  468 

that  plaintiff  has  not  capacity  to  sue I  469 

another    action    pending I  469 

misjoinder  of  parties  plaintiff I  470 

defect  of  parties  plaintiff  or  defendant I  471 

misjoinder  of  causes  of  action I  472 

failure  to  state  cause  of  action I  474 

grounds  of,  to  pleadings  after  complaint I  463 

to  answer I  476 

to  counterclaim I  477 

to  reply I  478 


INDEX.  667 

DEMURRER — (continued):                                                       vol.  page. 

for  what  will  not  lie I  464 

when  may  be  interposed  to  supplemental  pleading.     I  465 
only  to  be  interposed  to  whole  cause  of  action  or  de- 
fense       I  466 

how  objections  must  be  talien  by I  465 

what  objections  not  taken  by,  deemed  to  be  waived     I  466,  481 

when  may  be  joined  with  answer I  467 

what  allegations  admitted  by I  467 

amendments  after  decision  of I  479 

rule  of  allowance  at  common  law I  479 

allowance  of,  in  discretion  of  court I  480 

when  leave  to  amend  not  granted I  480 

effect  of  amendment I  486 

when  objection  to  pleading  waived I  481 

in  action  of  ejectment Ill  14 

See,  also,  Issues. 

DENIALS.     See  Answer. 

DEPOSIT: 

of  money,  when  may  be  ordered I  751 

effect  of I  751 

See  Payment  into  Court. 

DEPOSITION: 

to  be  used  on  motion,  when  may  be  talcen I  260 

application  for , I  261 

what  must  appear  by I  261 

what  notice  required I  261 

of  party  cannot  be  taken * I  261 

when  opposite  party  cannot  oppose I  261 

where  person  to  be  examined  must  attend I  262 

when  may  move  to  vacate  order I  262 

of  party  cannot  be  compelled  on  attachment I  639 

of  other  than  party,  can  be  compelled  on  attachment     I  639 

See  Examination  before  Trial. 

how  taken  wittin  the  state  for  use  in  another  state  II  34-38 

taken  without  the  state  for  use  within  it II  39-77 

costs  for  taking II    606-607 

See,  also,  Commission. 

DESCENT  CAST: 

does  not  effect  right  of  possession I  88 

DETERMINATION    OF    CONFLICTING    CLAIMS   TO 
REAL  PROPERTY,  ACTION  FOR: 
when  claim  of  dower  can  be  tl'ied  by  means  of  action 

for Ill  103 

history  and  nature  of Ill    173-174 

in  what  courts  may  be  brought Ill  174 


OGS  INDEX. 

DETERMINATION  OF  CONPLICTING  CLAIMS  TO  REAL 

PROPERTY,  ACTION   FOR— (continued)  :                        vol.  page. 

iu  what  couuty  to  be  brought II  127-130 

proceedings  in  the  actiou Ill  1T4 

who  may  be  plaintiffs I  178 

III  175 

what  estate  plaintiff  must  have Ill  175 

what  possession   plaintiff   must   have Ill  175-177 

parties    defendant I  178 

III  177-178 

nature    of    defendant's    claim Ill  177-178 

complaint  in,  what  to  contain Ill  178-179 

answer  in,  what  may  be  set  up  in Ill  179-181 

issues,  how  tried  in Ill  181, 182 

proceedings  before  judgment  in Ill  181-182 

amendment    of    pleadings Ill  181 

opening  default Ill  181 

injunction    Ill  182 

verdict,   report   or   decision II  378 

III  182 

perpetuation  of  testimony Ill  182 

what  plaintiff  must  show  to  recover  in Ill  182 

judgment  in Ill  183-184 

bow  taken  on  default Ill  181 

what  to  contain Ill  183-184 

form  of Ill  184 

how   entered  and  docketed Ill  184 

additional   allowance   in II  619 

effect  of  .  .  ..-. Ill  185 

new  trial   in  Ill  184-185 

against  claimant'  of  dower Ill  185-186 

DETERMINATION  OF  VALIDITY  OF  PROBATE  OF 
WILL,  ACTION  FOR: 
See  Will. 
DEVISEE: 

may  maintain  action  of  waste Ill  189 

action  by  creditor  of  decedent  against,  see  De- 
cedent. 

DISABILITIES: 

under  statute  of  limitations I  89, 110 

must  exist  when  right  of  action  accrued I  90,  110 

in  action  for  dower I  HO 

DISBURSEMENTS: 

included  in  "  costs  " II  537 

what  allowed  in  costs II  632-033 

only  allowed  where  party  entitled  to  costs II  633 

witness  fees,  what  allowed  as II  633-0.35 

640 


INDEX.  669 

DISBURSEMENTS— (con^tjii/etZ)  :                                               vol.  page. 

referee's  fees,  what  allowed  as II  636 

what  fees  of  commissioner  to  take  testimony  taxed 

as II  636 

not   taxed    where   party   the   only   witness    ex- 
amined     II  636 

for  copies  of  papers II  637-639 

for  searches II  637 

for  orders II  637 

for  printing II  637 

for  stenographer's  minutes II  637-639 

673-674 

for  sheriff's  fees II  639 

for  service  of  papers II  639 

for  surveyor's  fees,  not  taxable II  639 

how  stated  in  bill  of  costs II  639 

for  plans,  maps,  sketches,  etc.,  not  taxable II  639-640 

for  furnishing  undertaking,  not  taxable II  640 

fees  paid  certain  public  officers,  not  taxable II  640 

affidavit  of,  what  to  contain II  649-650 

of  attendance  of  witness,  what  to  show II  649-650 

of  referee's  fees,  what  to  show II  650 

not  allowed  without  affidavit II  649 

in  action  for  foreclosui'e  of  mechanic's  lien  discre- 
tionary   Ill  168 

DISCHARGE: 

from  arrest,  must  be  given  to  defendant  on  giving 

bail,  or  deposit I  525 

of  bail,  before  expiration  of  time  to  answer I  537 

DISCONTINUANCE: 

attorney  may  stipulate  for I  39 

effect  of,  on  limitation  of  action,  where  counterclaim 

interposed I  109 

when  allowed II  173-187 

right  to,  absolute  before  appearance,  without  costs  II  175-176 

allowance  of  discretionary,  after  appearance II  174 

terms  of  . II  175 

granting  of  terms,  discretionary II  194-197 

•  what  terms  required II  194-197 

when  allowed  without  costs II  196-197 

upon  settlement  of  action II  175 

after  counterclaim  interposed II  176-179 

upon  plea  of  another  action  pending II  180-181 

arbitration  operates  as II  181 

after  change  in  rules  of  practice II  181-182 

in  action  for  replevin II  182-183 

where  plaintiff  has  been  misled II  183 


GTO  INDEX. 

DISCONTINUANCE — (contmued)  :                                          vol.  page. 
where  plaintiff  surprised  by  defense,  such  as  infancy 

or  insolvency H  184-185 

in  action  of  ejectment II  183 

where  witness  has  been  examined  pending  action..   II  183-184 

where  action  brought  under  mistalie II  185-186 

not  allowed  where  plaintitf  in  default II  186 

order  for,  how  entered  on  stipulation II  186, 190 

application  for,  by  whom  made II  187-188 

may  be  made  at  any  time  before  judgment. ...  II  188 

should  be  made  promptly II  189 

how  made 11  190-191 

what  facts  should  be  stated  in  aflBdavit  on....   II  191-192 

when  notice  of  motion  required II  191-192 

opposing  affidavits  on II  192-193 

order  for,   necessary  to  effect II  190,  193 

contents  of II  193 

must  be  complied  with  before  effectual II  194 

effect  of II  197 

rights  of  defendant  after II  198 

for  neglect  to  proceed II  199 

of  supplementary  proceedings Ill  579-580 

DISCOVERY  OF  BOOKS  AND  PAPERS: 

what  courts  may  order I  832 

an  action  cannot  be  maintained  to  aid  a  discovery  in 

another  action I  832 

application  for  must  be  made  under  code  of  civil 

procedure I  832 

must  be  by  petition I  842 

distinction  between,  and  examination  before  trial. .     I  833 

granting  of,  discretionary I  833 

must  be  necessary I  833,  834 

includes  power  to  compel  deposit  for  inspection I  834 

only  gi-ant'ed  to  enable  party  to  obtain  information 

necessary  for  his  own  case I  834 

when  not  ordered  of  all  books  and  papers I  834 

may  be  ordered  of  books  and  papers  of  corporation     I  835 

may  be  ordered  of  books  and  papers  of  receiver. ...     I  835 

when  ordered  in  actions  between  partners I  836 

by  principal  of  books  of  agent I  836 

cases  in  which  not  ordered I  836 

application  for.  by  whom  made I  837 

when  granted,  before  cause  at  issue I  838 

when  granted  after  issue I  840 

petition  for,  what  must  contain I  842 

what  facts  and  circumstances  must  be  stated  In     I  842 

must  be  verified  bv  affidavit I  842 


INDEX. 


671 


DISCOVERY  OF  BOOKS  AND  FAFERS— {continued)  :    VOL, 

must  be  verified  by  party 

when  certificate  of  referee,  suflicieut  proof  for 

order  to  sliow  cause,  what  to  contain 

should  contain  directions  as  to  manner  of  dis- 
covery   

peremptory  order  cannot  be  made  ex  pourte 

proceedings  upon  return  of 

when  order  will  be  denied  on  hearing  of 

order  for  discovery,  what  to  contain 

when  may  operate  as  stay 

by  whom  may  be  vacated 

for  what  reasons  will  be  vacated 

proceedings  under  order 

referee  may  be  appointed  to  superintend 

power  of  referee 

order  should  be  strictly  obeyed 

denied  where  party  is  not  able  to  produce 

party  may  be  examined  under  oath  before  referee. . 
when  part  of  book  may  be  sealed 

how  sealed  portions  procured  to  be  opened.... 

proceedings,  if  not  complied  with 

effect  of  papers  produced  as  evidence. . . .' 

penalty  for  disobedience  of  order 

referee  cannot  order I 

in  judgment  creditor's  action II 

DISMISSAL: 

of  complaint,  for  failure  to  serve  summons 

for  unreasonable  neglect  to  proceed 


for   neglect,    when   defendant   waives   right  to 

move  for I  315 

defendant     can     move     for,     if     counterclaim 

pleaded I  316 

for  failure  to  serve  copy,  when  granted I  423 

effect  of  judgment  of I  316 

on  opening II   307-308 

of  supplementary  proceedings,  for  unreasonable  ne- 
glect to  proceed Ill  579 


PAGE. 

844 
845 

845 

846 
845 
847 
847 
845 
846 
846 
846 
848 
848 
849 
849 
847 
849 
849 
850 
850 
850 
850 
424 
427-428 


314 
314 
199 


DISPUTED  CLAIM: 

See  Executors  and  Administrators. 


DISMISSAL   OF   APPEAL.     See  Appeal,   Appellate   Di- 
vision, and  Court  of  Appeals. 


GT2  INDEX. 

DISPUTED  WRITINGS:                                                           vol.       page. 
proof  of.  by  comparison II  108 

DISSOLUTION  OF  CORPORATION: 

voluntary Ill  323,  339 

See  CORPOBATION, 

DISTRIBUTIVE  SHARE: 

action  for.  against  administrator Ill    350-352 

DIVORCE: 

notice  published  with  summons,  in  action  of I  226 

counterclaim  in  action  for I  453 

place  of  trial  in  action  for II  135 

actions  for,  to  be  tried  by  jury II  213 

referee  cannot  be  named  in  consent  to  refer II  403-404 

417 

no  reference  on  defendant's  default   II  411-412 

application  for  judgment  must  be  made  on  referee's  (to 

hear  and  determine)   report  in  action  of II  441,  445 

costs  in    II  561-562 

additional  allowance  not  granted  in II  623 

judgment  in  action  for,  not  to  be  entered  without  order.   II  681 

when  judgment  for  money  in,  enforced  by  execution.  ...    II  963-964 
See,  also.  Matrimonial  Actions. 

DOCKET: 

See  Justice  of  the  Peace. 

of  judgment    II  685-686 

effect  of   II  686,  687 

when  to  be  canceled  and  discharged II  703-704 

entered  on  return  of  execution  II  706 

of  judgment  on  restoration  of  lien II  706-707 

cancellation   and   discharge   of,   of   judgment   after   dis- 
charge in   banl<ruptcy    II  745-747 

of  judgment  by  confession  II  762 

of  judgment,  when  amended  or  cancelled  after  appeal.  .    II  820 

of  judgment  in  replevin  creates  lien Ill  219 

DOCUMENT: 

admission  of  genuineness  of,  see  Books  and  Pai'ers  and 

Papers. 
proof  of,  see  Records. 

congressional,   admissible   as    evidence II  117 

in  public  office  of  foreign  country  how  proved   II    123-124 

See  Certificate. 

See,  also.  Papers. 


INDEX.  673 

DOMESTIC  CORPOEATION:                                                 •     vol.  page. 

defined Ill  309 

See,  also,  Corporation. 

DOMICILE : 

what  is,  of  married  woman  in  matrimonial  action Ill  258 

2G3-264 

DOUBLE  COSTS.     8ee  Increased  Costs. 

DOWER: 

action  for,  when  to  be  brought I  84 

disability,   in  action  for    I  110 

what  prevents  running  of  statute  of  limitations I  110 

who  defendant,  in  action  for I  174 

effect  of  notice  of  pendency  in  action  for   I  241 

undertaking  required  on  injunction  to  stay  proceedings 

iu I  594 

action  for,  in  what  county  to  be  brought II  127-130 

to  be  tried  by  jury   , II  212 

plaintiff  entitled  to  costs  of  course  in II  542 

fees  of  surveyor  in   II  662 

fees  of  commissioner  in  II  662 

judgment  in,  enforced  by  execution    II  963 

ejectment  not  maintainable  where  action  of,  lies Ill  7 

may  be  barred  as  to  lands  held  in  common  with  husband, 

by  agreement  of  partition   Ill  33 

court  to  provide  for,  in  distributing  proceeds  in  par- 
tition   Ill  89 

consent  to  receive  gross  sum  as,  in  partition Ill  89 

inchoate  right  of,  may  be  released  in  partition ....  Ill  90 

how  value  of,  ascertained   Ill  90 

See  Admeasurement  of  Dower. 

effect  of  divorce  on   Ill  277,  278 


E. 

EARNINGS: 

how  reached  on  execution,  or  in  supplementary  pro- 
ceedings, see  Execution  and  Supplementary  Pro- 
ceedings. 

EASEMENTS: 

when  encroachment  upon,  restrained   I  555 

may  not  be  recovered  in  ejectment   Ill  5 

43 


674  INDEX. 

EJECTMENT:                                                                                 vol.  page. 

proof  of  authoritj-  by  attorney  to  bring I  39 

wlio  may  be  plaintiffs  in   I  166 

by  grantee  under  void  conveyance    I  168 

who  must  be  defendant  in    1  108 

when  person  claiming  title  may  be  joined  as  defendant 

in I  169 

notice  of  pendency  must  be  filed  in  action  of I  239 

effect  of  such  notice  I  241 

undertaking  required,  on  injunction  to  stay  proceedings 

in I  594 

does  not  abate  by  death    I  811 

substitution  of  parties  in  action  for,  brought  by  grantee 

in  name  of  grantor    : I  816 

continuance  of  action  for,  by  surviving  tenants  in  com- 
mon    I  820 

when  grantee  of  defendant  in,  need  not  be  substituted.  .  I  823 

rules  for  substitution  of  parties  in   I  825 

in  what  county  action  to  be  brought   II  127-130 

discontinuance  in  action  of    II  183 

action  of  to  be  tried  by  jury   II  212 

verdict  in  action  for   II  377 

motion  for  new  trial  in   II  515-517 

may  be  gi-anted  on  same  ground   as  in  any  other 

action II  515 

the  statutory  new  trial   II  515 

when  action  considered  one  of II  515-516 

application  for,  to  be  made  at  special  term II  516 

based  on  affidavits II  516 

right  to  first  new  trial   absolute II  516 

time  within  which  to  make  application II  515 

when  begins  to  run    II  516 

terms  of  granting II  515, 516 

what  is  waiver  of  right  to  new  trial II  515,  516 

second  new  trial  discretionary   II  515,  517 

what  must  be  shown  to  obtain   II  517 

only  two  new  trials  in  all  granted  under  the  statute.  .II  517 
order  granting  second  new  trial  reviewable  in  ap- 
pellate division II  517 

of  wiiat  restitution  ordered  on  reversal  of  judgment  in.  II  834,835 

judgment  in,  how  enforced  by  execution  II  963 

leave  to  issue  execution  after  death  of  defendant  in.  .  .  .  II  973 

origin  and  historv  of    Ill  1 

what  courts  have  jurisdiction  of   Ill  3 

for  what  the  action  lies  Ill  3-5 

onlv  for  something  tangible    Ill  3,  5 


INDEX.      .  675 

EJECTMENT—  ( con  tinned )  :                                                          vol.  page. 

land  under  water   Ill  3 

highway Ill  3,  4 

easeinent Ill  3,  5 

overhanging  wall   Ill  4 

land  covered  by  party  wall   Ill  5 

when  can  be  maintained  by  people   Ill  4,  10 

what  title  necessary  to  maintain  action Ill  5-8 

plaintiff  must  have  right  of  possession Ill  5,  6 

when  maintained  on  mere  equitable  title Ill  6,  7 

possession,  how  far  evidence  of  title  in Ill  6,  7 

may  be  maintained  against  vendee  under  contract. .  Ill  7 

mortgagee  cannot  maintain    Ill  7,  124 

cannot  be  maintained  where  action  for  dower  lies.  .Ill  7 

reversioner  can  maintain  after  life  tenant's  default.III  7-8 

what  may  be  recovered  in  the  action Ill  8-9 

any  real  estate  of  which  actual  possession  can  be 

delivered Ill  8 

damages  for  withholding  property    Ill  8,  9 

when  estate  of  plaintiff  has  expired Ill  20 

rents  and  profits   Ill  8,  9 

permanent  improvements  set  off  against  damages .  .  Ill  9 

who  may  be  parties  in Ill  10-12 

plaintiffs Ill  10 

people Ill  10 

grantee  in  grantor's  name   Ill  10 

receiver Ill  10 

trustee Ill  10 

landlord Ill  10 

defendants Ill  10-11 

change  of   parties    Ill  11-12 

when  action  severed  by  several  occupation Ill  11-12 

pleadings  in    Ill  12-16 

complaint,   requisites   of    Ill  12-14 

against  tenant  in  common  or  joint  tenant ....  Ill  13,14 

as  to  rents  and  profits   Ill  14 

demurrer Ill  14 

answer Ill  14-16 

what  may  be  proved  under  general  denial.  .  .  .Ill  14 

possible   defenses    Ill  15-16 

equitable   defenses    Ill  16 

proof  of  authority  to  bring  action  of  Ill  16-17 

when   required   , Ill  16-17 

what  is  sufficient   Ill  18 

receiver   Ill  18 

injunction Ill  18 


676  INDEX. 

EJECTMENT— (c-OH/iJiMcrf)  :                                                       vol.  page. 

survey Ill  18-19 

when  may  be  ordered  in   Ill  18-19 

order  for,  what  to  contain   Ill  19 

copy    of    order    must    be    served    before    entry    on 

premises Ill  19 

how,  made  after  order   Ill  19 

proceedings  before  judgment  in Ill  19 

issues  in,  how  tried    Ill  19 

estate  of  plaintiff  must  be  specified  in  verdict,  report, 

or  decision Ill  20 

judgment  in    Ill  21 

form   of    Ill  21 

effect  of Ill  23-24 

when  conclusive   Ill  23-24 

against  whom  conclusive   Ill  23-24 

costs   in    Ill  21 

execution  in    Ill  21 

new  trial  in    Ill  21 

what  defendant  may  show  on    Ill  21 

default  in,  when  opened   Ill  22 

restitution  on  opening   Ill  23 

proceedings  where  action  brought  for  rent  in  arrears.  .Ill  25-28 

when  may  be  maintained Ill  25-26 

when  notice  to  quit  necessary  Ill  25 

when  notice  of  intention  to  re-enter  necessary ....  Ill  25-26 
verdict  and  judgment  must  fix  amount  of  rent  in 

arrear Ill  26 

when  rent  apportioned   Ill  26 

payment  or  redemption  by  the  tenant    Ill  27-28 

when  possession  of  property  delivered  to  tenant .  .  .  Ill  27-28 

EJECTORS: 

action   against   forcible Ill  201 

ELECT: 

motion  to  compel  party  to   II  303-304 

ELISORS : 

when  and  by  whom  appointed  I  29 

ENTRY: 

upon  real  estate,  when  sufficient  as  a  claim I  85 

EQUITY: 

jurisdiction  of  .supreme  court,  what  it  includes I  65 

actions   in,   when   barred    I  101 


INDEX.  677 

ERROR  IN  FACT:  vol.      page. 

motion  to  set  aside  judgment  for,  see  Judgment. 

ESCAPE: 

limitation  of  action  for    I  100 

ESCHEAT : 

people  plaintiff,  in  action  to  enforce I  154 

EVIDENCE: 

offer  of,  see  Trial  by  Jury. 

motion  to  strike  out,  see  Trial  by  Jury. 

documentary II      95-126 

secondary II  106 

See  Notice  to  Produce. 
8e&,  also,  Papers. 
See  Certificate. 
See,  also.  Document. 
on  trial  by  court,  see  Trial  of  Issues  of  Fact  by 

COUHT. 

new  trial  for  newly  discovered,  see  New  Trial. 

new  trial,  because  verdict  against   II    493-497 

EXAMINATION.     See  Witness.     See,  also,  Trial  by  Jury. 
See,  also.  Supplementary  Proceedings. 

EXAMINATION  BEFORE  TRIAL: 

of  party  as  witness    II  1 

in  what  courts  had   II  1-2 

at  whose  instance    II  1 

may  be  had  in  action  about  to  be  brought II  2 

whom  maj'  be  examined  on  II  2-3 

order  for,  discretionary  with  the  court II  3-4 

18-19 

to  perpetuate  testimony,  matter  of  right   II  3,  19 

may  be  denied  before  action  brought,  though  granted 

before  trial    II  4 

will  be  denied  where  cause  of  action  for  nominal 

damages   onlj^  shown    II  4 

when  taken  at  party's  own  instance II  4 

physical  examination  of  plaintiff  may  now  be 

had  in  negligence  case  in  connection  with  oral 

examination II  4, 18,  22 

in  action  for  libel  when  granted II  5 

concerning  criminal  offense II  5-6 

not  granted  where  trial  pending  before  referee . ,  II  6 
may   be  had   to   enable  either   party  to   frame 

pleadings II  6 

for  what  purpose  granted  after  issue II  6-8 


GTS  INDEX. 

EXAMINATION  BEFORE   TRlAl^-icontinucd)  :                  vol.  page. 

uot  granted  to  procure  affidavit  on  motion II  6 

as  to  iuformauon  necessary  to  make  a  complaint 

definite,  etc II  6-7 

may  be  bad  to  enable  party  to  furnish  bill  of 

particulars II  7 

uot  granted  to  compel  disclosure  of  evidence. ...  II  7 

not  granted  to  ascertain  cause  of  action,  etc...   II  7 

fiduciary  relation  cases II  8 

of  witness  not  a  party II  8 

not  to  enable  a  party  to  frame  pleading II  9 

only  to  preserve  testimony II  9 

application  for,  to  whom  made II  9-10 

affidavit  for,  what  must  contain II  10-17 

what  to  state  if  party  to  be  examined  is  corpora- 
tion     II  17 

order  for,  when  granted II  18 

what  to  contain II  19 

how  to  be  served II  22-23 

fees  of  witnesses  must  be  paid II  23 

books  and  papers  of  corporation  to  be  produced  on.  .  II  20-21 
boolcs  and  papers  of  other  than  corporation  to  be  pro- 
duced     II  21-22 

28-29 

of  witness,  when  had  by  consent II  23-24 

how  and  for  Avhat  causes  order  may  be  vacated.  ...   II 19,  24-26 

deposition,  when  and  where  to  be  taken II  26-27 

may  be  adjourned II  26 

how  to  be  taken  and  returned II  27-30 

all  formal  objections  must  be  taken  on  examination  II  27-28 

how  to  be  read  over  and  subscribed II  29 

what  jurat  to  be  attached  to  deposition II  29 

deposition  must  be  filed II  29-30 

may  be  filed  nunc  pro  tunc II  30 

motion  to  suppress,  how  made II  30 

for  what  defects  will  be  suppressed II  30 

when  may  be  read II  31-33 

effect  of,  when  read  in  evidence II  33 

when  party  examined  may  be  sworn  at  trial II  33 

testimony  of  adversary  taken  upon,  may  be  rebutted  II  33 

of  witness  within  state,  for  use  without II  34-37 

when  and  how  maj'^  be  had II  34 

penalty  for  failure  to  obey  subpoena,  etc II  34-37 

what  petition  for  subpoena  on,  must  show II  37 

fees  of  witness II  37-38 

how  testimony  to  be  taken  down  and  returned.   II  38 


INDEX.  679 

EXCEPTION:. 

on  trial  by  jury,  see  Trial  by  Jury. 

to  charge,  see  Trial  by  Jury.                                            vol.  page. 

when   applicatiou   made,   to   be   heard   at  appellate 

division   in  first  instance II  384 

whether  judgment  may  be  entered  after II  384-385 

during  trial  of  issues  of  fact  by  court II  386 

to  decision,  see  Trial  of  Issue  of  Fact  by  Court. 

to    report    of    referee II  442-444 

See  Referee. 

what  questions  may  be  raised  without II  398,  460 

See,  also.  Case  and  Exceptions. 

EXECUTION: 

levy  of,   by   sheriff I  22, 24 

when  sheriff  cannot  purchase  under I  22 

after  warrant  of  attachment,  form  of I  691 

to  what  sheriff  directed I  691 

by  whom  allowed  after  death  of  defendant  be- 
fore judgment I  692 

in  what  order  property  sold  under I  692 

sheriff  must  regain  possession  of  personal  property 

lost  after  attachment I  693 

amendment  of I  781 

to  collect  costs  on  entry  of  interlocutory  judgment.  II  276 

sheriff's  fees  on II  668-669 

670-671 

entry  of  satisfaction  of,  on  docket  of  judgment II  705-706 

sheriff  to  satisfy  judgment  on  payment  of II  705-706 

on  judgment  by  confession II  762-763 

direction  for  restitution  enforceable  by II  836 

what  judgments  may  be  enforced  by II  963-964 

motion  costs  may  be  collected  by II  565-566 

964 

when  may  be  issued,  of  course II  966-970 

not  until  judgment-roll  filed II  966-967 

subsequent  filing  of  judgment-roll  validates II  967 

may  be  mailed  to  sheriff II  967-968 

not  issued  until  judgment  actually  docketed II  968 

when  set  aside  for  irregularity II  968 

995-998 

for  what  will  be  vacated II  995-996 

where  judgment  vacated  execution  falls II  996 

motion  to  vacate,  when  to  be  made II  996 

must  be  upon  notice II  996 

proceedings  upon,  when  may  be  stayed II  996 

997,  998 

stranger  to  action,  when  may  move  to  stay  upon  II  997-998 


680  INDEX. 

EXECUTlo:\— (continued):  vol.       page. 

uot  issued  ou  judgmeut  eutered  as  security II  968 

appeal  does  uot  stay,  wilLout  order  or  undertaking.   II  969 

how  issued  after  deatli  of  judgment  creditor II  969 

issued  within  five  years,  may  be  without  leave II  969 

if  after  five  years,  not  void II    969-970 

when  leave  required  to  issue  after  five  years. ..   II  970 

motion  for  such  leave  may  be  made  by  personal 

representative  or  assignee II  970 

where  motiou  for  leave  made II  970 

service  of  notice  of  motiou,  how  made II  971 

facts  to  be  made  to  appear  ou  such  motion II  971 

what  questions  may  be  raised  on  hearing II    971-972 

leave  after  death  of  defendant  in  ejectment II  973 

leave  after  death  of  judgment  debtor II    973-978 

decree  required  from  surrogate's  court II  973 

after  what  time  decree  may  be  made II    973-974 

975 

petition   to   surrogate   for II  976,  977 

proceedings  after  petition II   976-977 

authority  of  surrogate  upon II  977 

notice  of  application  to  court  in  which  judgment 

recovered II  975 

what  notice  required II   975-976 

upon  whom  served II  976 

what  should  appear  by  aflidavits II  976 

in  what  order  applications  are  made II  976 

where  one  of  several  joint  judgment  debtors  dies  II    977-978 

upon  judgment  against  personal  representatives II    978-980 

not  to  be  issued  without  order  of  surrogate II  978 

what  notice  of  application  to  be  given II  979 

upon  what  papers  application  to  be  made II  979 

when  order  to  be  made  by  surrogate II    979-980 

order  does  not  give  preference II  979 

when  undertaking  may  be  required  by  surrogate  II  980 

upon  a  judgment  wholly  for  necessaries  sold,  or 
work  performed  in  a  family  as  a  domestic,  or  for 
services  rendered  for  salary  owing  to  an  employe 

of  the  judgment  debtor II    980-981 

different  kinds  of II    981-982 

contents  and  form  of II    982-985 

is  a  mandate  of  the  court II  982 

by  whom  signed II  982 

on  transcript  of  judgment,  contents  of II  984 

for  a  sum  of  money,  contents  of II  984 

against  more  than  one  party II  984 

against  property,  what  must  be  stated  in II  985 

to  collect  motion  costs,  what  must  be  stated  in....  II  985 


INDEX.  681 

EXECUTION — {continued)  :                                                      vol.  page. 
where    warrant    of    attachment,    what    must    be 

stated  in II  985 

against  the  person,  contents  of II  985 

in  what  cases  it  may  issue II  1063-1066 

when    cannot    issue    until    execution    against 

property  returned II  1066-1067 

may  issue,  though  more  than  five  years 
elapsed  since  judgment  entered,  where  exe- 
cution against  property  was  Issued  within 

five  years II  1067 

effect  of  issue  of,  if  execution  against  property 

not'  returned II  1067 

when  judgment  debtor  in,  in   custody,   other 

execution  cannot  issue II  1068 

may  issue  after  escape II  1068 

arrest  of  judgment  debtor  upon II  1068 

custody  of  judgment  debtor  upon II  1068 

liberty  of  jail  upon II  IOCS 

undertaking  upon II  1068-1069 

effect  of  arrest  upon  judgment,  as  to  satis- 
faction     II  1069 

when  defendant  to  be  discharged  from  arrest 

upon II  1070-1071 

new  execution  against  person,  when  may  issue  II  1071-1072 

for  delivery  of  real  property,  contents  of II  987 

for  delivery  of  a  chattel,  contents  of II  987-988 

to  what  county  may  be  issued II  988 

second  execution,  when  issued  to  same  county  as 

first II  988 

to  whom  directed II  989 

when  directed  to  coroner II  989 

when  court  may  direct  person  to  whom  directed.  .  II  989 

bond  to  be  given  by  such  person II  989 

to  whom  directed  when  attachment  has  been  levied  II  989 

indorsement  to  be  made  by  sheriff  upon II  990 

receipt  to  be  given  by  sheriff  for II  990 

how  to  be  executed  by  sheriff II  990 

effect  of  instruction  to  officer  upon TI  991-992 

how  far  officer  made  agent,  by  instructions II  991,  992 

when  to  be  returned II  992-994 

how  time  for  return  to  be  computed II  992 

to  what  clerk  to  be  returned II  993 

return  to  be  endorsed  upon II  993 

return  on,  what  to  contain II  993 

by  whom  return  to  be  made II  993 

return  may  be  compelled  by  court II  993 

when  additional  return  may  be  comi^lled II  993-994 


G82  INDEX. 

EXI^CUTION — (contiHiivil )  :                                                        VOL.  PAUE. 

wlieu  returu  will  be  caucelkHl II  994 

liability  of  party  for  wroufjlui II  994-995 

wlieu  party  not  liable  for  lawful  act II  994-995 

how  far  process  protection  to  ollicer 11  995 

new  execution  issued  of  course,  after  first  returned  II  998 

leave  required  for,  where  first  outstanding II  998 

reasons  lor  granting  leave II  998-999 

when  issued  after  escape  of  judgment  debtor....  II  999 

sheriflf  cannot  purchase  on II  999 

by  wlinui  executed  after  death  or  disqualification 

of  sheritf II  999-1000 

lien  of,  Avhen  attaches  to  personal  property II  1000-1002 

not  until  .ludgment  actually  entered II  1001 

not  until  delivery  to  sheriff  to  execute II  1001 

to  what  time  levy  on,  relates II  1001 

when  no  lien  on  property  sold  before  levy II  1001 

who  is  piux'haser  in  good  faith II  1002 

what  property  exempt  from II  1002-1012 

certain  personal  property II  1002-1006 

military  pay  when  exempt  from II  1006-1007 

right  of  action  fo'r  taking  exempt  property  on.  II  1007-1008 

burial  grounds  exempt  on II  1008 

homesteads  exempt  on II  1008-1011 

special  provisions  as  to  exemptions II  1012 

what  property  may  be  levied  upon  II  1012-1018 

railroad's  rolling  stock    II  1012 

crops,  etc II  1013 

mortgaged  property,  etc II  1013 

corporate  evidence  of  debt,  designed  to  circu- 
late as  money  II  1014 

bonds  and  stocks  of  corporation II  1014 

money II  1014-1015 

pledged  property  II  1015 

leasehold II  1015 

partnership  interest   II  1015-1016 

•wages,  debts,  earnings,  ets II  1016-1018 

how  levy  to  be  made  II  1018-1028 

how  custody  to  be  t'aken  of  property  II  1018-1019 

how  made  when  property  in  possession  of  sheriff.   TI  1019 

when  sheriff  may  enter  house  of  defendant II  1019 

levy  must  be  made  on.  before  return  day II  1019 

how  much  property  must  be  levied  upon II  1O20 

no  lev.y  necessary  on  real  estate II  1020 

care  of  property  by  sheriff II  1020 

release  of  propert.y   of   firm,   taken   on  execution 

against  one  member   II  1021-1022 

proceedings  where  third  person  claims  property.  .   II  1022-1024 


INDEX.  683 

EXECUTION — \continued)  :                                                     VOL.  page. 

sheriff's  jury,  liow  empaneled  ou II  1U22 

proceedings  before   II  1022-1023 

inquisition  of,  and  subsequent  proceedings  . .  II  1023-1024 
when    indemnitor    to    be    substituted    in    action 

against  slieriff   II  1024-1028 

granting  of  application  for  substitution,  dis- 
cretionary    11  1025 

clear  case  must  be  made  out II  1025-1026 

delay  does  not  prejudice  application  II  1026 

notice  of  application  for  substitution II  1026 

papers  upon,  what  to  contain II  1026 

order  upon II  1026 

security,  what  may  be  required  on II  1026 

when  action  may  be  divided  II  1026-1027 

when  name  of  officer  may  be  stricken  out  as 

defendant II  1027 

eft"ect  of  order  of  substitution II  1027 

substituted  defendant  has  single  costs  only.  .  II  1027 

right  of  officer  against  indemnitor II  1027-1028 

when  execution  becomes  dormant II  1028-1029 

proceeds  upon  sale,  how  applied  upon II  1029-1030 

execution  creditors  may  change  legal  priorities  by 

agreement II  1029 

against  partners,  how  proceeds  applied  upon II  1030 

sale  of  personal  property,  what  notice  to  be  given 

of II  1030 

effect  of  omission  to  give  such  notice II  1031 

effect  of  defective  advertisement II  1031 

penalty  for  taking  down  or  defacing  notice II  1031 

sale  to  be  had  between  nine  o'clock  and  sunset. . .  II  1031 

property  must  be  present  at  sale II  1032 

property  must  be  pointed  out II  1032 

how  to  be  sold II  1032 

how  sold  when  subject  to  chattel  mortgage II  1032 

must  be  for  cash II  1032 

statute  of  frauds  applies II  1032-1033 

title  which  passes  by  sale II  1033 

title  not  impaired  by  subsequent  reversal II  1033 

title  after  sale  under  void  execution IT  1033 

sheriff  cannot  sell  to  collect  fees II  10.33 

sale  set  aside  for  irregularity II  1033-1034 

proceeds  upon  sale,  how  applied II  1034 

court  has  power  to  give  directions  as  to  applica- 
tion of  proceeds,  upon  motion,  but  will  not  ordi- 
narily do  so II  1034 

action  lies  to  settle  claims  to  proceeds  on II  1034 


G84  INDEX. 

EXEC L'TION —  ( con t  inued )  :                                                      -VOL.  page. 

real  property,  bow  sold  ou,  ele 11  1035-1UG2 

what,  may  be  sold  uu 11  I0o5-1037 

leasehold 11  1035 

land  uuder  contract  of  purchase,  not  to  be  sold  II  1U35 

land  held  adversely II  1035 

land  fraudulently  conveyed II  1035-1036 

estate  by  curtesy II  1036 

expectant  estate II  1030 

whoii  equity  of  redemption  not  to  be  sold.  ...  II  1036-1037 

trust  property,  when  may  be  sold  on II  1037 

notice  of  sale  of  real  property,  how  given....   II  1037-1039 

hov7  to  be  published II  1038 

penalty  for  sale  without  notice II  1038-1039 

sale  of,  how  made II  1039-1040 

duty  of  sheriff  upon II  1039 

how  to  be  published II  1038 

title  of  purchaser  on  sale II  1040 

when  sale  may  be  set  aside II  1040 

certificate  of  sale,  what  to  contain II  1041 

to  be  made  by  sheriff II  1041 

to  be  filed II  lo41 

right's  of  judgment  debtor  before  conveyance  II  1041-1042 

rights  of  person  entitled  to  possession  of  land.   II  1042-1043 

remedy  of  i)nrchaser  for  waste II  1043-1044 

redemption II  1044-10.")7 

how  to  be  made  by  judgment  debtor  or  owner  II  l<i44 

right  personal   to   debtor II  1045 

who  may  redeem II  1045 

by  tenants  in  common II  1045 

what  to  be  paid  upon II  1046 

when  to  be  made II  1046 

certificate  of,  to  be  delivered II  1046-1047 

certificate  of,  of  what  facts  evidence - . .  II  1047 

by  what  creditor  may  be  made II  1047-1048 

when  made  by  creditor II  1048-1054 

what  papers  to  be  produced   by  creditor  by 

judgment II  1048-1052 

what  papers,  by  creditor  by  mortgage. ...  II  1048-1049 

1050-1052 

by  creditor,  where  to  be  made II  1052 

sheriff's  office  to  be  kept  open  for II  1052 

to  whom  money  to  be  paid  on II  1052,  1053 

to  whom  made,  where  sheriff  dead  or  disqual- 
ified     II  1053 

how  made  after  sale,  by  person  specially  ap- 
pointed     II  1053-1054 

certificate  of  to  be  delivered  to  creditor II  1054 


INDEX. 


685 


EXECUTION — {continued)  :                                                      VOL.  PAGE. 

when  redemptiou  by  creditor  complete II  1054 

by  judgment  creditor,  effect  of II  1054-1055 

when  separate  parcels  of  property  may  be  re- 
deemed     II  1055 

by  subsequent  creditors,  bow  to  be  made II  1055-1057 

when  to  be  made II  1056-1057 

creditor  on  whose  execution  sale  made,  when 

cannot  redeem II  1057 

conveyance  on,  when  to  be  made II  1057 

by  whom  made II  1057-1058 

to  whom  to  be  made II  1057, 1058 

to  whom  made  where  purchaser  dead  II  1058-1059 

what  to  contain II  1059 

assignment  of  judgment  before  conveyance. .  II  1059-1060 
remedy  for  failure  of  title  on  sale  of  real  property 

on II  1060 

contribution,  where  real  property  of  two  or  more 

persons  liable II  1060-1062 

may  be  issued  after  docket  of  deficiency  judgment. Ill  146 

to  collect  costs  in  matrimonial  actions Ill  273,  282 

how  issued  on  judgment  against  executors,  when 

all  not  served Ill  355 

in  action  against  joint  stock  association Ill  440 

on  judgment  in  action  against  joint  debtors Ill  458-460 

proceedings  supplementary  to,  see  Supplementary  Pro- 
ceedings. 


EXECUTORS  AND  ADMINISTATORS: 

limitation  of  action  against I 

by,  when  cause  of  action  accrued  in  life  of 

testator  

may  sue  without  joining  persons  benefited 

only  to  sue  or  be  sued  in  representative  character. 

how  judgment  against,  enforced 

all  considered  as  one  person 

separate  answers  by,  when  allowed 

to  whom  letters  testamentary  not  issued,  not  neces- 
sary party 

II 

foreign,  cannot  be  sued  within  this  state 

what  actions  they  may  bring 

of  deceased  partner,  w'hen  not  to  be  joined  as  de- 
fendant   

to  be  sued  personally  on  contracts  made  after  tes- 
tator's death  

counterclaim  in  action  by  or  against' 


97,  106 

106 
140 
149 
149 
149 
149 

149 
353 
149 
150 

152 

152 
451 


G8G  INDEX. 

EXECUTORS  AND  ADMINISTRATORS— (con^imfcd)  :  vol.  page. 
upou  death  of  sole  surviving,  receiver  may  be  ap- 
pointed       I  "09 

-vvlifu  action  may  be  coutiuued  by  and  agaiust...     1  807,808 

iu  wliat  action  to  be  substituted I  816-818 

reference  of  an  action  by  or  against II  405 

a  non-resident,  of  a  domestic  estate,  cannot  be  re- 
quired to  give  security  for  costs II  522 

security  for  costs  in  action  by  or  agaiust II  525-527 

form  of  execution  agaiust  properly  in  hands  of...   II  986 

authority  of,  pending  appeal II  928-929 

costs  against,  sec  Costs. 
when  action  brought  by,  or  against,  in  personal 

or  representative  capacity Ill  347 

348-349 
when   action   against,    in   representative   capacity 
may  be  joined  with  one  agaiust  in  personal  ca- 
pacity   Ill  347-348 

349-350 

action  for  legacy  or  distributive  share Ill  350-352 

when  may  be  brought Ill  350,  351 

what  must  be  shown  for  maintenance  of Ill  350 

demand  and  refusal  must  be  shown Ill  352 

when   brought    against    foreign    adminis- 
trator   Ill  350 

when  each  legatee  may  sue  separately Ill  351 

when  heir  or  devisee  necessary  party  defend- 
ant   HI  351 

when  executor  individually  liable  for Ill  351 

six  years  statute  of  limitations  applies  to.... Ill  351 

when  statute  begins  to  run Ill  351 

code  provision  for,  not  applicable  to  proceed- 
ings in  surrogate's  court Ill  352 

such  action  is  a  bar  to  proceedings  in  surro- 
gate's court  to  compel  payment Ill  352 

guardian  ad  litem  must  file  bond  in Ill  3.52 

in  action  against,  all  considered  as  one  person.  ..  .Ill  352 

appearance  by Ill  352 

separate  answers  by,  when  allowed Ill  352-353 

executor  not  qualified,  not  necessary  party.  .Ill  353 
what  personal  representatives  must  join  as  plain- 
tiffs   Ill  353 

pleadings  in  Ill  353 

want  of  assets  not  to  be  pleaded  in  action  against, 

in  representative  capacity Ill  353 

not  liable  for  false  pleading HI  353 

inventory  of  asset's  may  be  rebutted Ill  353-354 

when,  not  to  be  charged  with  demand  or  right  of 

action  included  in  inventory Ill  354 


INDEX.  687 

EXECUTORS  AND  ADMINISTRATORS— {continued)  :  \ou  page. 

action  does  not  abate  by  death  of Ill  354 

judgment,  how  entered Ill  355 

what  to  contain Ill  355 

for  costs  against  personally,  to  be  separately 

docketed Ill  355 

not  a  lien  on  testator's  real  property  unless  so 

stated  and  property  specifically  described.  .Ill       355,356 

not  evidence  of  assets Ill  356 

is  prima  facie  evidence  of  debt  on  hearing  before 

surrogate _ Ill  356 

does  not  entitle  judgment  creditor  to  prefer- 
ence    356 

not  evidence  against  heirs  or  devisees Ill  356 

supplementary  proceedings  cannot  be  had  on, 

against Ill  356 

execution  against,  how  issued,  when  all  not  served. Ill  355 

action  against,  when  barred  by  judgment  against 

heir  or  devisee  for  same  cause Ill  357 

limitation  of  action  against,  on  disputed  claim... Ill        357-360 
action  must  be  begun  within  six  months  after 

rejection   Ill  357 

what  is  sufficient  presentation  and  rejection  to 

set  statute  running Ill        357-358 

to  what  claims  against  decedent,  statute  ap- 
plies   Ill  358 

statute  does  not  apply  where  administrator  is 

a  non-resident Ill  358 

what  consent  to  determination  of  claim,  other 

than  by  action,  prevents  running  of  statute. Ill        358-359 
defense  of  this  statute  of  limitations  can  be 
set  up  in  action  against  heirs  and  next  of 

kin  on  rejected  claim Ill  359 

surrogate  may  allow  costs  on  determination  of 

rejected  claim  by  him Ill  359 

citation  on  application  of  executor  as  adminis- 
trator to  require  creditor  to  present  claim  to 

surrogate  for  determination Ill  359 

claims  barred  if  action  not  begun  prior  to 
return  day,  or  creditor  consents  to  de- 
termination by  surrogate Ill  359 

reference  of  claims  against  estate  of  decedent III       360-369 

is  an  action — not  a  special  proceeding Ill  362 

what  claims  may  be  referred Ill        360-362 

only  those  authorizing  judgment  for  sum   of 

money   only Ill  361 

executor  cannot  make   a  non-referable  claim 

referable  by  agreement  to  refer Ill  361 


688  INDEX. 

EXECUTORS  AND  ADMINISTUATORS— (cort/trtutd)  :  vol.  paqb. 

agreement  to  refer,  how  to  be  made Ill  3G2 

wliat  to  contain HI  362.  303 

what  constitutes  an,  lalhei-  than  aibitratiou.  .111  364 

must  be  lilcd  in  county  clerk's  ollice Ill  362,  363 

referee  in HI  362 

bow  selected HI  362,  363 

must  be  approved  by  surrogate Ill  362,  363 

surrogate's  approval  of,  to  be  filed Ill  362,  363 

cannot  require  bill  of  particulars Ill  365 

powers  of HI  365-366 

report  of HI  366 

appointment   of   new,   wbere   one   named   re- 
fused to  serve HI  366-367 

order  for  reference HI  362,  363 

not  a  special  term  order HI  363 

entry  of,  deemed  commencement  of  action... HI  363 
entry  of,  not  necessary  to  give  jurisdiction, 

where  agreement  has  been  filed HI  363-364 

pleadings  not  necessary HI  364 

statute  of  limitations  may  be  taken  advantage  of, 

without  setting  it  np HI  365 

bill  of  particulars  may  be  ordered  in HI  364-365 

to  be  ordered  by  court,  not  referee HI  365 

executor  can   set   off  claim  of   decedent,   against 
claimant's  demand,  but  cannot  have  affirmative 

judgment  on  contested  claim HI  366 

proceedings  before  referee HI  365-366 

report  of  referee .HI  366 

exceptions  to  report HI  366 

367-368 
judgment   entered   on   report   of   referee   without 

confirmation HI  367 

appeal   from   judgment HI  367 

appointment    of    new    referee    where    new    trial 

granted HI  368 

costs  in HI  368-369 

EXEMPTION: 

from  service  as  trial  juror   II  280-282 

evidence  of  right  to   H  282-283 

in  New  York  covmty   H  283-284 

in  Kings  county  H  284 

right  to,  not  a  disqualification    II  284 

See  Triai,  Juror. 

from  execution H  1002-1012 

action  for  taking  exempt  property   H  1007-1008 

special  provisions  as  to   II  1012 


INDEX.  689 

EX  PARTE:       . 

motion,  what  is    I  245 

may    be    heard    at    special    terms    adjourned    to 

chambers I  9 

requisite  of  affidavit  on    I  254 

renewal  of I  272 

order  of  judge  need  not  be  entered   I  277 

when  may  be  entered   I  278 

how  vacated 1  280 

when,  injunction  will  be  vacated   I  006 

EXPERTS.     See  Trial  by  Jury. 

EXTENSION  OF  TIME: 

how  and  by  whom  made   I  294 

requirement  of  notice  for,  in  certain  eases I  294 

affidavit  for,  what  must  show I  294 

must  be  served  with  order   I  295 

what  does  not  operate  as   I  295 

by  whom  made,  after  time  has  expired I  296 

in  what  eases  time  cannot  be  extended I  297 

to  appeal,  by  death  of  party  I  297 

EXTRA  ALLOWANCE: 

after  offer  of  judgment   I  774 

See  Costs. 

EXTRAORDINARY  TERMS : 

of  supreme  court    I  8 

F. 

FEES : 

of  clerk,  how  fixed    I  18,  19 

maj^  be  demanded  in  advance    I  19 

trial,   when   payable    I  19 

of  sheriff I  26 

of  coroner,  when  acting  as  sheriff   I  27 

of  witness  upon  subpoena   II  81 

upon  subpoena  duces  teetun    II  84-85 

Avhat  are II  656-657 

only  to  be  taken  when  allowed  by  statute   II  657-658 

only  those  allowed  by  statute  to  be  charged II  657-658 

to  be  taxed  upon  written  demand II  658 

who  may  tax    II  658-659 

of  sheriff  on  execution,  how  collected  II  659 

not  to  be  collected  without  taxation,  if  required   ....  II  659 

of  referee II  659-061 

for  oaths  and  acknowledgments    II  661-662 

of  surveyor  in  partition  or  dower   II  662 

u 


690  INDEX. 

FEES — (coiilinucd)  :                                                                    vor,.  page. 

of  commissioner  in  partition  or  dnwer   II  662 

of  clerk  of  court  of  appeals   1  [  662-663 

of   clerk  of  courts  of   record    1 1  663-665 

of  county  clerk II  665-666 

of  sheriiV  II  666-671 

of  stenoirrnphor II  672-674 

of  juror II  674 

of  publisher II  674-675 

of  witness II  676 

of  receiver II  676-677 

FIDELITY  OR  SURETY  COMPANY: 

undertaking  by I  298 

when  statement  of  condition  to  be  made I  300 

where  to  be  filed I  300 

FILING  OF  PAPERS : 

when  order  for  filing  will  be  granted   I  290 

in  special  proceedings,  where  filed   I  291 

undertaking  when  to  be  filed   I  291 

in  what  office  to  be  filed   I  291 

in   arrest  and  bail    I  524 

on  injunction,  must  be  filed   I  597 

in  attachment  must  be  filed   I  640 

FINAL  JUDGMENT: 

what  is II  590 

678-680 
See,  Issue. 
See,  also.  Judgment. 
FIRST  DISTRICT: 

where  motions  may  be  made  in I  249 

FORCIBLE  EJECTORS: 

action  against Ill  201 

when  treble  damages  recoverable  in Ill  201 

FORECLOSURE  OF  MORTGAGE: 

who  must  be  plaintiffs  in  action  for   I  175 

III  127-128 

who  must  be  defendants  in  action  for   I  176 

III  128 
one    liable    for     payment     of    mortgage    may     be 

joined  as I  177 

III  128 

when  prior  incumbrancers  may  be  defendants  in. Ill  128,  136 

when  notice  of  pendency  must  be  filed  in I  237 

effect  of  such  notice   I  243 

receiver  in  action  for   I  707 

111  132 


INDEX.  691 

FORECLOSURE  OF  MORTGAGE— (confrnwed)  :               vol.  page, 

injunction  to  stay  waste  I  578 

III  132 
of  mortgage   on    real    property,   where   action   to   be 

brought II  129 

referee  to  compute  or  sell  must  be  selected  by  court.  .   II  417 

costs  in,  discretionary    II  562 

additional  allowance  on   II  619,  622 

where  application  for  judgment  by  default  made  ....   II  717 

proof  of  default  in  action  for  II  718 

assessment  of  damages  on  application  for  judgment 

by  default  in  II  721-722 

history  and  nature  of Ill  121-124 

when  only  remedy  is  on  mortgage   Ill  124-125 

strict,  see  Strict  Foreclosure. 

by  advertisement Ill  126 

object  of Ill  126 

in  what  court  to  be  brought Ill  127 

place  of  trial  of Ill  127 

how  brought Ill  128-129 

wife  of  mortgagor  must  be  served  with  summons  in.  .Ill  129 

pleadings  in,  what  to  contain   Ill  129-130 

proceedings  on  default  in   Ill  130-131 

reference  on  default    Ill  130 

order  of  reference,  what  to  contain Ill  131 

referee's  report Ill  131 

notice  of  application  for  judgment  on   Ill  131 

trial  of Ill  131-132 

judgment  in Ill  132-136 

what  to  contain Ill  132-136 

to  provide  for  sale Ill  132 

what  expenses  directed  to  be  paid  in Ill  133 

referee  to  sell  to  be  named  in Ill  133 

in  what  counties  to  be  entered   Ill  133 

nature  of Ill  133 

by  what  judge  made   Ill  133-134 

should  contain  directions  for  deficiency  judgment. Ill  134 
against     whom     deficiency     judgment     may     be 

entered Ill  134-135 

what  to  contain  where  mortgage  debt  not  all  due.III  135-136 

to  be  received  for  all  sums  due  at  time  of  entry. Ill  135 

what  liens  to  be  considered  in Ill  136 

eflfect  of,  on  incumbrancers   Ill  136 

sale  in,  see  Sale. 

tender  of  amount  due  in  Ill  137 

how  amount  of  costs  established   Ill  137 

eflfect  of Ill  137 

conveyance  on  sale  in,  see  Conveyance. 


G92  INDEX. 

FORECLOSURE  OF  MORTGAGE— {eoniinucd)  :               vol.  page. 

referee's  report  of  sale   Ill  143 

confirmation   of    Ill  143-144 

surplus  on  sale,  see  Surplus  Money. 

deficiency,  liow  ascertained   Ill  145 

should  be  stated  in  the  referee's  report Ill  145 

when  judj,'inent  for,  may  be  entered Ill  145-146 

execution  may   be   issiicd   after   docket   of   judg- 
ment for Ill  146 

FORECLOSURE  OF  LIENS  ON  CHATTELS: 
See  Liens. 

FORECLOSURE  OF  MECHANIC'S  LIEN: 
See  Mechanic's  Lien. 

FOREIGN  CORPORATION: 

service  of  summons  upon,  how  made I  207 

attachment  against I  619 

defined Ill  309 

See  COKPORATION. 

books  of,  for  wliat  i)urpose  evidence   II  102 

when  copy  of  books  of  may  be  used  II  103 

how  verified II  103 

wliat  notice  to  be  given  for  production  of  books  of .  .  II  105 

when  required  to  give  security  for  costs II  522 

FOREIGN  COUNTRY: 

records  of  courts  of,  how  proved II        122-123 

documents  in  public  office  of,  iiow  proved   II        123-124 

FOREIGN  JURY: 

what  is II  289 

application  for II  289 

affidavit  for II  289 

order  for II  290 

how  jury  drawn II  290 

FRANCHISE: 

when   interference   with   restrained I  556 

action  against  usurper  of,  .see  Usurper  of  Office. 

FRAUD: 

when  action  for,  barred  by  limitation   I  93,  94 

arrest  in  actions  for,  see  Arrest  and  Bail. 
action  to  annul  marriage  for,  see  MatrimoniaIj 
Actions. 

FRIVOLOUS  PLEADING: 

judgment  on I  379 

Sec  Pleading. 


INDEX.  693 

G. 

GENERAL  APPEAEANCE.     See  Appearance. 

GENERAL  GUARDIAN: 

petition  by,  for  authority  to  agree  to  partition. Ill  31-32 

may  apply  for  authority  to  bring  action  of  partition. Ill  39 

ward  may  maintain  action  against,  for  waste Ill  190 

GENERAL  RULES: 

by  whom  made    I  2 

binding  upon  courts  of  record I  2 

must  be  consistent  with  code I  2 

when  to  take  effect    I  2 

where  none  made,  what  practice  controls    I  2 

See  RuuES. 

GUARDIAN  AD  LITEM: 

not  a  party   I  12 

when  must  be  appointed I  182 

who  may  be,  for  infant   I  182 

when  court  may  appoint,  for  incompetent  person  ....      I  199 

See  Infant. 

of  infant  plaintiff,  when  absolutely  liable  for  costs.  .   II  586 

costs   against,   how   collected    II  586 

costs  for  procuring   II  604 

of  infant  plaintiff  in  partition   Ill  39 

cannot  purchase  at  partition  sale Ill  72 

of  infant  plaintiff  in  action  for  legacy  or   distribu- 
tive share,  must  file  bond   Ill  352 


H. 

HABEAS  CORPUS: 

may  be  issued  and  served  on  Sunday I  5 

by  United  States  soldier,  jurisdiction  of I  59 

to  bring  up  witness  to  testify II  90 

when  and  by  whom  issued II  90-91 

not  issued  to  bring  up  prisoner  sentenced  to  death  .  .   II  91 
when  issued  to  bring  up  prisoner  under  sentence  for 

felony II  91 

application  for  writ,  what  must  appear  on II  91-92 

form  of  writ  of   II  92-93 

service  of  writ  of II  93 

duty  of  officer  on  service  of   II  93-94 

return   of    writ    II  94 

final  order  in,  reviewable  by  appeal   II  774 

HABITUAL  DRUNKARD: 

how  land  of,  partitioned  by  agreement Ill  31-32 


094  INDEX. 

HEIR: 

may  bring  partition,  when  devise  claimed  to  be  void. Ill      41-42,45 

may  maintain  action  of  waste   Ill  189 

action  by  creditor  of  decedent  against,  see  De- 
cedent. 

HIGHWAY: 

action  for  animal  seized  in,  when  barred I  100 

when  obstruction   of,   restrained    I  557 

may  be  recovered  in  ejectment Ill  3,  4 

HOLDING  OVER,  PERSON: 

action  against Ill  198 

HOLIDAYS: 

noon  to  midnight  of  Saturday  to  be : .  .  .  .  I  6 

to  be  considered  as  Sunday I  6 

service  on,  except  Sunday,  valid   I  6 

court  may  be  open  on,  except  Sunday I  6 

HUSBAND: 

may  partition  by  agreement  with  wife  Ill  32-33 

See  Matrimonial  Actions. 

HYPOTHETICAL  QUESTION: 

to  experts II       315,  320 


I. 

IDIOT: 

how  land  of  joint  tenant  or  tenant  in  common,  par- 
titioned by  agreement Ill  31-32 

action  to  aimul  marriage  because  one  party  was, 
see  Matrimonial  Actions. 

IMPEACHING  WITNESS.     See  Witness. 

IMPOTENCY: 

action    to    annual    marriage    for,    see   Matrimonial 
Actions. 

INCREASED  COSTS: 

when  allowed   II  G40-644 

in  what  cases  allowed    II  040-641 

what  officers  entitled  to   II  G41-G43 

not  allowed  to  indemnitor  substituted  as  defendant  in 

action  against  sheriff,  etc II  1027 

not  allowed  on  interlocutory  proceedings   II  043 

allowed  to  appellant  as  well  as  respondent  on  appeal .  II  043 
plaintiff    who    recovers    increased    damages    is    not 

thereby  entitled  to   II  C43 

defined II  044 

does  not  include  disbursements   II  044 


INDEX.  695 

INCREASED  COSTS— (coj)imMed)  :                                        vol.  page. 

treble  costs  defined  II  644 

belong  to  party   II  644 

how  obtained II        G44-645 

only  awarded  on  motion   II  644 

certificate  for,  required  on  motion  II  645 

INCREASED  DAMAGES.    See  Damages. 

INFANT: 

leave  to  sue,  in  action  of  partition  by I  133 

may  obtain  leave  to  sue  as  poor  person I  135 

when  may  bring  action  of  partition I  170 

plaintiff I  182 

guardian  ad  litem  must  be  appointed  for I  182 

who  may  be  guardian  for   I  182 

when  attorney  or  officer  of  court  must  act I  183 

consent  must  be  produced  before  aijpointment .  .  I  183 
application    for    appointment    of    guardian    for, 

how  made I  183 

by  whom  made I  183 

to  whom  made I  185 

to  whom  made  in  actions  for  partition   ....  I       184,  185 

what  must  show    I  185 

security  by  guardian  for,  in  action  of  partition.  I  186 
clerk,    when    appointed    guardian,    must    give    se- 
curity    I  187 

guardian    of,    not    to    receive    property    without 

giving  security I  187 

court  may  direct  new  bond  to  be  given  by  guard- 
ian of  I  187 

effect  of  failure  to  appoint  guardian  ad  litem  for.  I  187 

compensation  of  guardian  ad  litem  for I  188 

defendant I  182 

must  appear  by  guardian  ad  litem I  182 

application  for  guardian  ad  litem,  for,  how  made.  I  183 

when  to  be  made   I  183 

notice  of I  184 

what  must  show   I  185 

when  absent  from  state,  how  guardian  appointed.  I  186 
whem  summons  may  be  served  on  such  guard- 
ian    I  186 

duties  of  guardian  ad  litem,  of I  187 

such  guardian  not  liable  for  costs   I  188 

how  summons  served  upon I  198 

when  appearance  must  be  made  by   I  235 

when  may  be  arrested I  499 

receiver  in  action  by  or  against   I  709 

when  required  to  give  security  for  costs II        522-523 


(JOG  INDEX. 

INFANT — {continued)  :                                                                 VOL.  page. 
need  not  give  security  for  costs  when  authorized  to 

sue  as  poor  person II  523 

against  infant  phiintill',  how  costs  collected II  586 

judgment  by  default  against  infant  defendant II  692 

proof  on  foreclosure  where  dcfeiidaiit  is  infant II  721-722 

cannot  confess  judgment   II  756 

how  land  of,  partitioned  by  agreement   Ill  31-32 

when,  may  bring  action  of  partition    Ill  39-41 

distribution  of  proceeds  in  partition  where   infant  a 

party Ill  87 

supplementary  ^^loteedings  may  be  had  on  judgment 

against Ill  507 

INJUNCTION : 

with  order  to  show  cause,  when  ceases   I  279 

defined I  539 

distinction  between  final  and  temporary   I  540 

temporary,  when  granted  by  order I  539 

object  of  granting  temporary   I  540 

only  granted  in  cases  prescribed  in  code I  541 

granting  of,  discretionary  with  the  court I  541 

only  granted  in  action   I  542 

plaintiff's  rights  must  be  clear I  542 

injury  must  be  irreparable   I  543 

wheK  inadequacy  of  legal  remedy  must  appear   I  543 

when  will  be  refused  for  laches   - I  543 

only   granted   when   necessary    to    protect    plaintiff's 

rights I  544 

where  right  to,  depends  upon  nature  of  action I  544 

applies  only  to  suits  in  equity   I  544 

can  be  granted  only  on  complaint I  545,  585 

must  be  asked  for  in  prayer  for  judgment I  422,  545 

restrictions  upon  granting    I  545 

where  rights  depends  partly  upon  extrinsic  facts  ....      I  546 

meaning  of  phrase  "  subject  of  the  action  " I  546 

may  be  granted  before  service  of  complaint   I  546 

various  cases  where  injunction  M'ill  be  granted I  547 

violation  of  contract    I  548 

violation  of  copyright    I  548 

corporations I  549 

III  327-329 

directors    of   corporations    I  549 

III  327-329 

in  action  for  sequestration   I  551 

III  327-329 

to  vacate  incorporation    I  551 

to  annul   corporation    I  551 

III  343-344 


INDEX.  697 

INJUXCTIOX— (coH/i'»wrfZ)  :                                                  vol.  page. 

creditors,  when  will  be  restrained  from  suing   .  .  I  551 

against  joint  stock  association   Til        329-330 

religious   corporations    I  552 

municipal  corporations   I  552 

ordinances  of  municipal  corporations I  553 

covenants I  554 

easements I  555 

franchises I  556 

highways I  557 

actions  at  law I  558 

actions  iu  foreign  courts I  559 

application  should  be  made  in  the  action 

and  not  by  new  suit I  560 

judgments I  561 

summary  proceedings I  563 

nuisances I  564 

III  197 

quo  warranto    I  556 

III  489 

official  acts I  567 

taxpayer's  action I  567 

III        4.54-455 

various  miscellaneous  official  actions I  568 

to  restrain  arrest I  568 

personal  services I  570 

libel,  publication  of I  571 

private  letters I  571 

publications I  572 

patents I  572 

taxes  and  assessments I  572 

trade  marks,  trade  names,  and  unfair  compe- 
tition    I  573 

trespass I  576 

torts I  577 

waste I  578 

III       132,  188 

water  rights I  579 

proceedings  to  obtain  order I  581 

application  may  be  granted  before  service  of  sum- 
mons    I  581 

must  be  made  before  judgment' I  581 

cannot  be  granted  after  judgment I  581 

by  whom  granted I  581 

at  what  term  made I  582 

may  be  granted  by  appellate  division I  582 

when  can  only  be  granted  by  court I  582 

power  of  judge  to  grant',  where  derived I  582 


698 


INDEX. 


INJUNCTION— (co;i/ui«t(/)  :  vo 

in  what  cases  couutj-  judge  may  grant 

when  may  be  made  with  or  without  notice.  . . . 

in  what  case  notice  must  be  given 

not  an  ordinary  proceeding  in  action 

when  continued  after  order  to  show  cause 

papers  on  which  granted 

when  complaint  must  accompany  application. 

affidavit  only  effective  as  proof  of  facts  alleged 

when  complaint  need  not  accompany  applica- 
tion   

verified  complaint,  when  sufficient  as  affidavit 

fact's  must  be  shown  in,  by  positive  affidavit. 

when  allegations  made  on  information  and  be- 
lief sufficient 

must  be  filed  forthwith 

answer  containing  counterclaim 

undertaking  to  be  given  on  application 

must  be.  on  granting,  to  stay  proceedings 

what  required  to  stay  proceedings  on  judg- 
ment for  money 

when  bond  may  be  given  in  lieu  of  payment 
into  court  

to  stay  proceedings  in  action  for  ejectment  or 
dower 

plaintiff  may  supply,  after  injunction,  on 
terms 

required  to  restrain  summary  proceedings. .. . 

what,  to  restrain  judgment  obtained  by  fraud. 

when  money  paid  into  court,  may  be  paid  over 

to  party 

proceedings  in  such  case,  if  injunction  va- 
cated   

must  be  filed 

in  actions  relating  to  real  property 

in  what  action  security  not  required 

order  should  recite  grounds  for 

what  should  show 

parties  only  to  be  restrained  by 

agent  of  defendant,  may  be  restrained  by 

service  of  order  for 

papers  on  which  granted  must  be  served  with 

undertaking  must  be  served  witli 

order  cannot  be  served  before  summons 

effect  of  

must  be  obeyed,  if  court  had  jurisdiction,  al- 
though irregular 

parties  to  action,  bound  by 


PAGE. 

583 
583 
5&4 
584 
584 
585 
585 
585 

58G 
586 
586 

586 
587 
587 
594 
594 

594 

596 

594 

597 
596 
596 

596 

597 
597 
598 
598 
588 
5SS 
589 
589 
589 
589 
590 
589 
590 

590 
590 


INDEX. 


699 


INJUNCTION— .(eon^imtcd)  :                                                  vol.  page. 

who  bound  by  as  agent I  590 

third  parties  not  restrained  by I  590 

when  notice  of,  without  service,  sufficient  to 

bind  party I  591 

how  must  be  obeyed I  591 

punishment  for  violation  of I  592 

who  will  be  punished  for  violation  of I  .592 

advice  of  counsel,   how  far  protected  in 

such  case I  591 

damages   sustained  by,   to   what  extent   plaintiff 

liable  for I  599 

when  right  to,  accrues I  600 

how  ascertained I  601 

proceeding  for,  not  part  of  action I  601 

order  of  reference  to  ascertain I  602 

who  entitled  to  notice  of  proceeding,  under. ...  I  002 

proceedings  upon  reference I  602 

what  allowed I  003 

what  allowed,  in  action  of  ejectment  or  dower  I  004 

counsel  fees,  what  allowed I  004 

allowed  to  corporation,  etc.,  when  defendant, 

officer,  etc I  005 

action  on  undertaking I  005 

vacating  or  modifying,  order I  606 

when  motion  for,  may  be  made  without  notice  I  606 
when  appellate  division  will  hear  application 

without  notice I      606,  607 

when  will  be  vacated  ex  parte I  606 

when  notice  of  motion  must  be  given I  607 

by  whom  motion  to  vacate  may  be  made I  607 

when  plaintiff  may  read  papers  in  opposition 

to  motion I  607 

proof  required,  when  made  on  papers  on  which 

granted I  607 

in  such  case,  plaintiff  cannot  make  new  proof 

to  sustain I  607 

verified  complaint,  when  referred  to,  to  sustain  I  007 

when  second  application  may  be  made I  608 

effect  of  verified  answer  on  hearing  motion.  .  I      580,608 

when  injunction  will  be  dissolved  on  motion.  .  I  008 

not  vacated  for  irregular  service I  009 

not  vacated  for  defect  of  parties I  609 

motion  not  heard  where  action  discontinued.  I  609 

on  giving  undertaking  by  defendant I      ,598,610 

when  merged  in  final  judgment I  610 

not  dissolved  or  vacated  where  cause  removed 

to  circuit  court  of  United  States I  611 


708, 

770 

18 

182 

424-426 

548 

-554 

TOO  INDEX. 

INJUNCTION— (<o'i //""'./)  :  VOL.  PAGE. 

effect  of  subse(iiient  proceeiliiiKs  in  tlio  action I  611 

See,  also,  Puovisional  Remeuii'.s. 

costs  of  proourini; II  005 

temporaryi   cannot   be   granted    in    snliniission    of 

controversy II 

in  ejectment Ill 

in  action  for  doterniination  of  conflicting  claims  to 

real  property Ill 

in  jiulgment  creditor's  action Ill 

in  supplementary  proceedings Ill 

INJURY: 

when  action  for  barred  I  93,  99 

INQUEST: 

when  notice  of  trial  imist  state  it  will  be  taken II  236 

what  is    n  260 

when  may  be  taken    II  200-261 

affidavit  of  merits  to  prevent,  when  served II  260 

rights  of  defendant  on   II  261 

when  taken  against  one  of  several  defendants II  261 

where  counterclaim  interposed    II  262 

setting  aside  for   irregularity    II  262-263 

costs  upon  setting  aside    II  263 

when  opened  as  a  matter  of  favor   II  263-264 

what  must  appear  on  application  for II  263-264 

terms  of  II  264 

whether  order  opening,  appealable   II  264-265 

INQUIRY: 

writ  of,  see  Writ  of  Inquiry. 

INSPECTION  WITH  COPY.     See  Discovery  of  Books 
AND  Papers. 

INSTRUMENT,  FOR  PAY^IENT  OF  MONEY  ONLY: 

how  alleged  in  pleading  I  329 

verification  in  action  upon I  340 

INTERLOCUTORY  JUDGMENT: 
on  demurrer,  sec  Issue. 
referee   to   hear    and   determine   an   accounting   suit 

should  not  order    II  422 

reference  after    II  447 

motion  for  new  trial  after   II        509-511 

defined II        678-680 

when  may  be  reviewed  on  appeal  from  final   II        810-813 

appeal  from,  of  supreme  court  to  appellate  division.  .   II  894 

»S'ee,  also.  Judgment. 


INDEX.  701 

INTERLOCUTORY  JUDGMENT— (co/i/i/a/cd)  :                  vol.  page. 

in    partition    Ill  55 

See  Partition. 

in  action  for  admeasurement  of  dower Ill  110-112 

in  matrimonial  actions,  see  Matrimonial  Actions. 

INTERLOCUTORY  REFERENCE : 

proceedings  on  hearing  of   II  437 

See  Reference. 

INTERPLEADER: 

when  will  be  ordered   I  308 

what  moving  party  must  show  I  309 

money  or  property  must  be  brought  into  court I  308,  311 

when  motion  for,  will  be  denied   I  311 

in  action  against  savings  bank  I  312 

order  for,  what  may  provide  I  313 

how   appealable    I  313 

costs  upon   I  313 

after  order  of,  action  triable  by  court II  217 

INTERROGATORIES : 

on  commission,  how   prepared    II  57 

how  settled   II  58-59 

when  objections  to,  taken   II  57,  58-59 

costs  for  drawing II  607 

See,  also,  Commission. 

IRREGULARITY : 

when  motion  made  for  relief  on  ground  of   I  246 

form  of  notice  of  such  motion I  264 

notice,  what  must  specify    I  264 

when  notice  need  not  specify   I  803 

affidavit  of  merits  not  required  on  such  motion .  .  I  803 

what  is I  798 

distinction  between  technical  and  substantial...!  I  799 

who  may  take  advantage  of   I  800 

remedy  for    I  801 

motion  to  vacate  must  be  made  promptly I  801 

motion   to   vacate   judgment   for,   when   to   be   nuide 

within   one   year    I  802 

only  irregular  proceeding  set  aside,  on  motion  for  ...  I  803 

how  waived  I  804 

what,  by  general  appearance    I  804 

no  waiver,  without  knowledge  of  facts    I  805 

intention  to  waive,  when  inferred    I  805 

what  cured  by  verdict  or  judgment  I  805 

when  inquest  set  aside  for II  262-263 

setting  aside  default  for    II  266-267 

of  referee,  how  waived    .'  II  449 


702  INDEX. 

IRREGULARITY — {continued):                                              vor..  page. 

motion  for  new  trial  for   II  478-484 

See  New  Trial. 
motion  to  vacate  judgment  for,  see  Judgment. 

when  execution  set  aside  for   II  790 

791,815 
ISSUES: 

motion  for  sottlciiiciit  of,  when  made I  247 

formed  by  copy  of  pleading  served I  334 

kinds   of    II  211 

of  law,  how  T  Msed    II  211,  269 

of  fact,  how  raised   II  211 

of  law,  how  tried    II  212 

of  fact,   how  tried    II  212-224 

See  Trial. 

order  of  trial  of   II  222-224 

remaining  after  trial  of  issue  of  fact,  how  disposed 

of II  223-224 

in   what   action    issues   must   be  settled   where  jury 

trial  is  a  matter  of  right II  225 

right  not  lost  by  failure  to  move  for  settlement, 

or  denial  of  motion II  225-226 

court  may  frame  issues  for  trial  by  jury  after  case 

submitted II  390 

effect  of  verdict   II  226 

settlement  of  discretionary,  when  no  right  to  trial  by 

jury II  226-228 

when  trial  of,  by  jury,  ordered  in  equity  case II  227-228 

effect  of  verdict  where  no  absolute  right  to  jury  trial 

of II  228 

motion  for  jury  trial  of  II  229 

form  of  questions  on  settlement  of II  229 

how,  settled  for  jury  trial  TI  229 

proceedings  where  reference  ordered  to  settle II  230 

order  settling,  what  to  contain   II  230 

order   appealable    II  230 

upon  trial,  court  may  submit  other  questions   II  230 

motion  for  new  trial  of,  after  trial  of      II  228,  230 

motion  for  judgment  after  trial  of   II  739-741 

note  of,  when  to  be  filed II  238 

See  Note  of  Issue. 

of  law,  at  what  term  to  be  tried IT  260 

in  what  county  tried,  in  supreme  court II  269 

how  trial  of  issue  of  law  brought  on II  209-270 

mode  of  trial  of  issue  of  law   II  270 

papers  on,   by  wlioni    fiiniislied II  270 


I 


INDEX.  703 

ISSUES — {continued):                                                               VOL.  PAGE. 

decision  on  trial  of  issue  of  law II  271-273 

must  be  in  writing II  271 

must  be  filed  within  twenty  days,  etc II  271 

effect  of  failure  to  file  decision   II  271 

form  of  decision II  272 

leave  to  amend,  after  decision  of  issue  of  law.  ...    II  272-273 

when  final  judgment  to  be  directed  in  decision ...    II  273 
costs  where  demurrer  interposed  to  one  of  several 

causes  of  action  or  defenses   II  273 

costs  on  sustaining  demurrer  to  whole  pleading.  .    II  273 

interlocutory  judgment  entered  upon  decision  of.    II  274 

when  final  judgment  entered  on  decision  of II  272-273 

274 

when  direction  for  final  judgment  should  be  given  II  274 

on  trial  of,  referee  may  make  computation II  274 

when  court  may  direct  damages  to  be  ascertained 

and  assessed II  275 

final  judgment,  how  obtained  if  not  directed  by 

interlocutory  judgment II  275 

736-738 

when  final  judgment  connot  be  entered II  275 

costs,    how    may    be    awarded    by    interlocutory 

judgment II  275-276 

563 

costs  awarded  on,  how  fixed   II  276,  605 

607 

how  collected II  276 

failure  to  pay  operates  as  stay II  276 

cost  on  demurrer,  interlocutory,  not  final II  540 

amendment  of  pleading  after   II  276,  824 

amendment  may  be  allowed  on  reversal  of  final 

judgment  taken  by  default   II  277 

review  in  court  of  appeals  of  appellate  division- 
decision  on  appeal  from  interlocutory  judg- 
ment on  demurrer II  277,  841 

order  for  trial  of  issues  in  action  against  corporation.    II  707-708 


J. 

JEOFAIL: 

statute  of    I  805 

JOINDER  OF  CAUSES  OF  ACTION.     8ee  Complaint. 

JOINT  DEBTORS: 

consolidation  of  actions  against  separate   I  307 

action  against  or  between   I        456-467 


704  INDEX. 

JOINT  DEBTORS— (con/iHiM-rf)  :                                           VOL.  page. 

action  against,  when  all  not  served Ill  456-4G0    ( 

plaint ifT  may   proceed   against   those  served 

and  take  final  judgment  against  all Ill  456 

one    named    as    defendant,    but    not    served, 

may  appear  in Ill  459 

attachment  in,  on  wliat  property  levied.  ..  .Ill  459-400 

those  served  cannot  confess  judgment  for  all. Ill  450 
whether  one  can  make  offer  of  judgment  for 

.     all Ill  456-457 

judgment  in,  can  only  be  against  all  jointly. Ill  457 
where    one    served    establishes    personal 
defense,     judgment     can      be      taken 

against  none   Ill  457 

judgment   against   those   served   only   is 

erroneous Ill  457 

where  entered  only  against  those  served, 

can  be  corrected  mow  pro  tunc Ill  457 

cannot   be   entered   till   time    of    all    to 

answer  has  expired   Ill  457 

efTect  of  judgment  on  those  served Ill  458 

on  those  not  served   Ill  458 

has      no      extra-territorial      effect 

against  those  not  served Ill  400 

execution  on  judgment  in   Ill  458-459 

how  issued  and  indorsed Ill  458-459 

effect  of  omission  to  endorse  as  re- 
quired  Ill  4G0 

not   enforceable    against    the    person    of 

one  not  summoned   Ill  459 

what  property  can  be  taken  on .  .Ill  459 

action  to  charge  defendant  not  summoned Ill  460-406 

when  may  be  maintained   Ill  460-462 

nature  of  the  action   Ill  400-461 

is   not   action    to    enforce    rights    imder 

original   judgment    Ill  461 

is  not  an  action  on  a  judgment  requiring 

leave  to  sue Ill  460 

for  the  purposes  of  provisional  remedies, 

is  regarded  as  action  on  contract.  ..  .Ill  465 

how  liability  established  in Ill  461 

scope  of  the  action Ill  461-462 

assignee  of  judgment  may  maintain Ill  462 

complaint  in,  what  to  contain Ill  462-46.3 

answer  in,  what  may  be  set  up  in Ill  463-464 

statute  of  limitations   HI  464 

eflfect  of  judgment  in  original  action Ill  464-465 

judgment  in    HI  465  466 


INDEX.  705 

JOINT  DEBTORS— (continued)  :  vol.  page. 

costs   in    Ill  466 

See,  also,  Partners. 

composition  by,  separately Ill        467-471 

when,  may  make  Ill  467 

member    of    partnership    cannot    make 

until  after  dissolution    Ill  468 

effect  of    Ill        467-468 

how  effected    Ill  467 

does  not  release  other  joint  debtors,  as   at 

common  law    Ill        468-470 

rule  as  to  joint  tort-feasors   Ill        469-470 

instrument  of,  deemed  satisfaction  of  judg- 
ment  Ill  470 

how  discharge  of  judgment  secured  by.  .Ill       470-471 
rights  of  other  joint  debtors  who  have  not 

compounded Ill  471 

supplementary  proceedings  to  reach  property 
owned  jointly,  against  a  joint  debtor  not 
summoned Ill  510 

JOINT  RESOLUTION: 

when  may  be  read  from  newspaper II  108 

JOINT  STOCK  ASSOCIATION: 

actions  by  or  against,  in  name  of  president  or  treas- 
urer         I  146 

to  what  bodies  provision  applies I       146, 147 

includes  suits  by  or  against  members I  146 

officers  cannot  all  be  joined I  146 

whether  officer  of.  maj^  be  examined  as  party II  2 

how     injunction     suspending     general     business     of, 

granted Ill        329-330 

defendant  stockholder  cannot  object  that  another  de- 
fendant stockholder  is  misnamed  or  is  dead Ill  336 

members  of,  regarded  as  partners   Ill  436 

is  a  partnership  with  some  of  the  powers  of  a  cor- 
poration   Ill  436 

action  by  or  against   Ill        435-443 

may    be    brought    either    against    officer    of,    or 

against  all  members  of   Ill  437 

when  may  be  brought  by  or  against  officer  of .  .  .  .Ill        435-439 

history  of  statutory  provisions  as  to   Ill        436-437 

officer  of,  regarded  as  corporation  sole  for  the 

purpose  of  action  by  or  against Ill  436 

when  brought  against  officer  of,  cannot  be  main- 
tained against  members  until  judgment  and 
execution  unsatisfied  .  . Ill  437 

45 


TOO  INDEX. 

.7 ()1  XT   STOCK   ASSOCIATION— (co/i/i »i»ef/)  :                    vol.  page. 

against  wliat  oiriccrs  maintiiinable   Ill  435,  437 

rules   to   be   applied  in   determining  who   is 

jirosidi-nt  or   treasurer    Ill  430 

cannot   be   maintained   against  odicer,   where   as- 
sociation has  ceased  to  exist Ill  437 

plaintiff  must  show  a  joint  liability  on  all  mem- 
bers   Ill  437 

for  what  causes  of  action Ill  437-439 

cannot  be  brought  against  the  association  as  a 

corporation Ill  438 

members  may  bring  the  action  against  president 

or   treasurer    Ill  439 

death  or   legal   incapacity  of  members   does  not 

affect  action    Ill  439-440 

complaint  in,  what  to  contain Ill  440 

officer  cannot  be  arrested  in Ill  440 

nor   his   property   attached Ill  440 

is  a  defense  that  association  has  ceased  to  exist. Ill  437 
or    that    association    has    loss    than    seven 

members Ill  438 

judgment  in Ill  440-441 

how   entered    HI  440,  441 

effect  of    Ill  441 

execution  thereon   Ill  440 

action  against  members  after  execution  against  asso- 
ciation  returned  unsatisfied    Ill  441-443 

when  maj-  be  brought Ill  441 

action  must  be  brought  against  survivors,  before 

executors  of  a  deceased  member  can  be  sued.  .  .Ill  442 

complaint  in,  what  to  contain Ill  442 

costs  may  be  i-eeovored  against  the  association,  in. Ill  442 

effect  of  the  judgment  against  the  association.  .  .Ill  442 

statute  of  limitations  in Ill  442-443 

defendant  cannot  object  because  of  misnomer  or 

death   of   other  defendants    Ill  443 

statutory  provisions  as  to  action  against  usurper  of 

franchise  do  not  apply  to Ill  482 

JOINT  TENANT: 

comjilaint  in  action  of  ejectment  against    Ill  13,  14 

may  bring  partition    Ill  33-37 

action   by.   against    co-tenant,    for   waste Ill  191 

193-194 
action  by.  against  co-tenant,  to  recover  share  of  rents 

and   ])iofits    Ill  198-199 


I 


INDEX.  707 

JUDGE:                    •                                                                                                    VOL.  PA.GE. 

of    certain    abolished    courts    to    be    supreme    court 

justices I  3 

adjournments  in  absence  of I  11,  12 

shall  not  sit  where  a  party,  or  interested I  12,  13,  14 

when  may  act,  although  interested    I  12,  13,  14 

how  disqualified  by  consanguinity  or  affinity I  12,  13,  14 

not  to  decide  question  argued,  when  not  present I  14 

not  to  be  interested  in  costs   I  14,  15 

not  disqualified,  because  resident  of  town  interested  in 

action I  15 

not  to  practice  in  his  own  court I  15 

law  partner  or  clerk  not  to  practice  in  his  court.  ...  I  15 

of  court  of  appeals,  not  to  practice I  15 

of  certain  courts  of  record  not  to  practice I  15 

not  to  sit  in  review  of  his  own  decision I  15 

when  disqualified  by  age   I  17 

power  of,  of  supreme  court I  65 

county  judges  in  certain  cases,  powers  of I  73,  77 

powers  of,  out  of  court I  77 

when  court  is  of  limited  jurisdiction I  77 

who  may  make  orders  out  of  court I  77 

cannot  grant  stay  of  proceedings  for  more  than  twenty 

days I  267 

when  may  vacate  order   I  78,  280 

calling  as  witness I  328-329 

cannot  be   referee,   etc II  416 

settlement  of  case  where  judge  is  out  of  office  or  has 

died II  463-464 

taxation  of  costs,  when  by II  645-646 

JUDGE'S  MINUTES: 

motion  for  new  trial  on II  472 

474-477 

what  notice  of,  may  be  given II  473-474 

See  New  Trial. 
JUDICIAL  SALE.     See  Sale. 

JUDGMENT: 

entered   on   Sunday,  void    I  5 

may  be  entered  on  election  or  town  meeting  day ....  I  6 

void  by  disqualification  of  judge I  13-14 

when  may  be  entered  or  docketed   I  20 

attorney  may  satisfy  within  two  years I  40 

upon  unauthorized  appearance,  may  be  set  aside....  I  43 

limitation  of  action  on I  90 

when  leave  to  sue  necessary I  121 

from  what  court  leave  to  be  obtained I  122 

may  be  granted,  nunc  pro  tunc I  123 


PAGE. 


708  INDEX. 

JUDGMENT—  ( continued )  :  VOL. 

how  entered   against   defendants  severally  liable.  ...  I  164 

when  may  be  taken  without  application  to  the  court.  I  193 

motion  to  set  aside,  when  made I  245 

how  pleaded    I  32G 

on  account  of  frivolousness  of  answer I  379 

See,  also,  Pleading. 

demand  for,  in  answer I  417 

»         demand  for,  in  answer I  456 

interlocutory  may  be  demanded I  421 

on    counterclaim    I  455 

on  failure  to  reply  I  460 

when  proceedings  upon  will  be  restrained I  561 

undertaking  required  on  injunction  to  stay  proceed- 
ings  upon    I  594 

how  levy  made  upon  I  653 

after  attachment,  how  to  be  satisfied I  692 

on  service  by  publication,  on  what  property  enforced.  I  693 

when  entered  for  part  of  claim  admitted I  764 

See  Satisfaction — Compromise. 

confession  of,  may  be  amended I  783 

how  may  be  amended I  784 

motion  to  vacate  for  irregularity  to  be  made  within 

one   year    I  802 

what  defects  cured  by I  805 

action  not  abated  after  interlocutory I  830 

cannot  be  entered  on  verdict,  etc.,  rendered  after  death 

of   party    I  831 

on  issue  of  law,  see  Issues. 
motion  for,  on  pleadings,  see  Teial  by  Jury. 

on  verdict  subject  to  opinion  of  court,  when  entered.  .  II  342 
whether   judgment  may   be   entered  when   exceptions 
ordered  to  be  heard  at  appellate  division  in  first 

instance II        384-385 

reference  upon  application  for   II  411 

to  be  entered  by  clerk  on  report  of  referee  to  hear  and 

determine II  441 

except  in  actions  of  divorce II  441 

motion  for  final,  after  reference  to  take  account II  447 

costs,  where  offer  of,  has  been  made II        587-588 

costs,  where  offer  of,  has  been  made  in  county  court.  II        599-602 

when  more  favorable  than  offer  of,  entitled  to  costs.  .  II  601 

costs   of  application   for,  on   special   verdict II        610-612 

clerk's  fee  in  entering  or  docketing II  664 

defined II        678-680 

final,  what  is II  590 

678-680 
840 


INDEX.  709 

JUDGMENT — {continued):                                                       vol.  page. 

interlocutory,  what  is II  678-679 

distinction  between,  and  order II  680 

when  to  be  entered II  680,  681 

when  judge  out  of  court  may  order II  681 

where  issue  joined  in  equity  cases,  clerli  cannot  en- 
ter, without  order II  681 

in  divorce  case,  not  to  be  entered  without'  special 

order II  681 

when  signed  by  the  clerk  and  judge II  681 

only  one,  in  an  action II  681 

what  constitutes II  682 

judgment  roll,  by  whom  prepared II  6S2 

what  to  consist  of II  682-683 

to  be  filed II  682 

endorsement  on II  683 

when  to  be  filed  in  olfice  of  secretary  of  state.  II  683 

must  conform  to  verdict  or  decision II  683 

provisions  as  to  what  constitutes,  directory.  .  II  683 
where  recitals  of  judgment  show  jurisdiction, 
though   certain   papers   lacking   from   judg- 
ment roll II  684 

what  papers  no  part  of  judgment  roll II  684 

what  defects  in,  amendable II  684 

judgment  book  to  be  kept  by  the  clerk II  685 

to  be  docketed II  685-686 

transcript  of II  686-687 

form  of II  688-690 

time  of  actual  entry  should  appear  in II  688 

what  recitals  to  contain II  688-689 

effect  of  recitals  in II  689 

mandatory  part  of II  689-690 

against  whom  entered II  690-692 

may    grant    affirmative    relief    to    one    defendant 

against  another II  690-691 

when  several  judgments  may  be  entered II  691 

in  action  on  joint  liability II  691 

in  action  on  joint  and  several  obligation II  691-692 

how  entered  where  action  severed II  692 

by  default  against  infant  defendant II  692 

what  relief  granted  by,  where  no  answer II  692-693 

where  answer  interposed,  any  proper  relief  may  be 

granted  by II  692 

693-694 

from  what  time  judgment  bears  interest II  694,  695 

interest  upon,  in  action  for  damages  for  causing 

death II  695 


710  INDEX. 

JUDGMENT— (coH^ /»««/)  :                                                     vol.  pack. 

effect  of,  dismissing,'  coinpl'iiut II  338-3.'iD 

G9U 

III  212 

lieu  of II  G9G-707 

uot  made  a  lieu  on  personal  property  by  entry  II  696 

becomes  a  lieu  on  real  propiTty  by  docketiuR.   II  090-097 

not  lien  until  jud^juieut  roll  liled II  097 

on  what  real  property  a  lien II  097-098 

against  decedent  not  a  lieu  on  real  estate II  098-G99 

duration  of  lien II  G99-7U1 

how  property  sold  after  lien  expires II  700 

minute  to  be  made  upon  reversal  or  modifica- 
tion of II  700-701 

lien  of,  how  susi)L'uded  or  determined II  701-706 

notice  of  application  to  suspend  lien  of II  702-703 

effect  of  such  suspension II  703 

reversal  of,  discharges  lien II  703 

lien  of,  how  restored II  706-707 

judgment  in  replevin,  lien  of Ill  219 

docket  of,  when  cancelled  or  discharged II  703-704 

satisfaction  of,  by  whom  executed II  703-704 

to  be  acknowledged  II  704 

to   be   given   on    satisfaction   or   payment   of 

judgment II  704 

instrument  of  separate  composition  by  joint 

debtor,  deemed  satisfaction Ill  470 

assignment  of,  to  be  acknowledged II  705 

trustee  may  file  notice  of  ownership  of II  705 

how  satisfied  on  return  of  execution II  705-706 

clerk  to  discharge  docket  of,  on  filing  certificate  of 

reversal  or  satisfaction II  706 

levy  of  execution  on.  not  satisfaction  of II  706 

by  default,  when  may  be  entered II  707-710 

in  action  against  corporation  for  failure  to  serve 

order  for  trial  of  issues II  707-708 

when  may  be  entered  after  substituted  service,  or 

service  by  publication II  708-709 

order  on  default  not  necessary II  709 

not  to  be  entered  by  default,  while  answer  stands.   II  709 

for  failure  to  answer  after  dcmuirer  overruled.  ...   II  709 

after  amended  complaint' II  709 

where  more  than  one  defendant II  709 

■  after  voluntary  appearance II  709 

after  service  of  summons  without  complaint II  709 

where  answer  admits II  710 

cannot  be  entered  after  defendant's  deatb II  710 


INDEX.  711 

JUDGMENT — {GOniinued)  :                                                         vol.  page. 
"When  defendant  entitled  to  notice  of  application 

for II  710-712 

where  notice  of  appearance  served  after  time  to 

appear  has  expired II  710-711 

demand  by  defendant  of  notice  of  computation  of 

damages II  710-712 

when  can  be  talcen  without  application  to  court  or 

judge II  712-714 

how  amount  of  final,  determined  in  such  case.  ...   II  713-714 

when  application  for,  necessary II  714-715 

where  application  to  be  made II  715-717 

where  made  when  part  of  defendants  have  ap- 
peared or  answered II  716 

in  foreclosure  action II  717 

papers  required  on  such  application II  717-718 

proceedings  on II  718-719 

application  for,  cannot  be  withdrawn  without 

permission  of  court II  719 

when  proof  must  be  taken  to  enable  court  to  enter  II  718-719 

assessment  of  damages  on  application  for II  719-722 

how    damages    ascertained    in    actions    of    re- 
plevin     II  720-721 

in  partition II  721 

in  foreclosure II  721-722 

reference  on  application  for,  where  executed II  722 

damages  in  action  of  tort II  720-722 

on  writ  of  inquiry,  see  Writ  of  Inquiry. 
proceedings  on  application  for,  after  assessment  of 

damages II  725-726 

when  application  required II  726 

application  for,  where  no  personal  service II  726-727 

what  proof  required  where  no  personal  service  II  720 

726-727 

undertaking  required  in  such  cases II  720,  727 

papers  required  on  application II  727 

proceedings  on  application   for,   where  judgment 

absolute  has  been  ordered II  727-729 

how  such  assessment  of  damages  reviewed.  .   II  728 

review  of  report  or  assessment  of  damages II  729-732 

where  assessment  by  the  court II  729-730 

where  reference  to  assess  damages II  730-731 

motion  to  set  aside  assessment  of  damages  by 

referee  or  writ  of  inquiry II  731 

for  what  irregularities  last-mentioned  assess- 
ment set  aside II  731-732 

entry  of.  after  general  verdict II  733-734 

must  conform  to  verdict.  , II  733 


712  INDEX. 

JUDGMENT— {continued)  :                                                        VOL.  PAGE. 

remedy  for  uiiautborized  mailer  in II  '733 

bow  eutered  wliere  parly  entitled  to  increased 

damages il  383,  734 

entry  of,  after  special  verdict 11  734-735 

motion  for,  where  made 11  734 

what  to  be  considered  on  such  motion 11  734-735 

for  wbat  party  judgment  may  be  ordered II  735 

bow  entered  after  trial  by  court  or  referee II  735-736 

irregularity  to  enter  before  filing  decision  or 

report 11  TSS 

may  be  entered  at  once II  785 

no  copy  of  proposed  judgment  need  be  served  II  735 

must  conform  to  decision  or  report' II  735 

clerk  to  enter  judgment,  except  in  first  depart- 
ment, form  settled  by  court  or  referee II  735-736 

remedy  where  unauthorized  matter  inserted . .  II  736 
where  form  of,  not  directed  by  referee's  report, 

to  be  settled  by  court II  736 

after  trial  of  issue  of  law,  how  final,  entered II  736-738 

cannot  be  entered  until  all  issues  disposed  of.   II  737 

when  clerk  may  compute  damages  after II  737 

when  application  must  be  made  to  court II  737 

what  must  be  shown  on  such  application II  737 

after  trial  of  issues  of  law  and  fact  in  same  action  II  738-739 

after  trial  of  specific  questions  of  fact  by  jury.  ...   II  739-741 

motion  for,  where  to  be  made II  740 

effect  of  findings  of  jury II  740 

proceedings,    where    remaining    issues    have 

been  referred II  740-741 

judgment  after  trial  of  specific  questions  of  fact 

by  referee < II  741 

where  exceptions  oi'dered  to  be  heard  at  appellate 

division H  741-742 

on  verdict  subject  to  opinion  of  the  court II  742 

application  for  final,  after  affirmance  of  interlocu- 
tory     II  743 

application  for  final,  after  entry  of  interlocutory. .  II  743-744 

settlement  of II  744 

for  what  causes  vacated II  744-747 

meaning  of  term,  "  error  in  fact  " II  745 

motion   to   set   aside   for,   must  be  made 

within    two  years II  749-7.50 

who  may  move  to  set  aside  for II  750-751 

remedy  for  irregularity,  by  motion  to  va- 
cate     II  745 

when  motion  to  vacate  for  irregularity  must 

be  made  Avithin  one  year II  748,  7.50 


INDEX.  713 

JUDGMENT — .(continued)  :  VOL.  page. 

notice  of  motion  to  vacate  for  irregularity 

or  error  in  fact II  751 

service  of  notice  of  motion  to  vacate II        752-753 

papers  used  on  motion II  753 

opposing  affidavits II  753 

order  what  to  contain II       753-754 

may  allow  judgment  to  be  amended II  753 

I'estitufion  may  be  ordered II        753-754 

motion  by  bankrupt  to  cancel  after  discharge  II        745-747 
power   to    vacate    exists    independent    of 

statute II  747 

correction  of,  only  by  appeal  or  motion II  747 

vacating  judgment  by  confession,  see  Confession 
OP  Judgment. 

in  what  cases  judgment  will  be  corrected II        747-748 

of  affirmance,  shall  not  expressly  award  the  relief 

granted  by  judgment  affirmed II  825 

by  confession,  see  Confession  of  Judgment. 
on   appeal   to   court  of    appeals,   see   Court   of 
Appeals. 
of  inferior  court,   appeals  from,   to   appellate  di- 

division II      876,  878 

See  Appellate  Division. 
of  city  court  of  city  of  New  York,  appealable  to 

supreme  court II        881-882 

See  SupBEME  Court. 
on  appeal  from  inferior  court  to  appellate  division  II  889 

on  appeal  to  supreme  court  from  city  court  of  city 

of  New  York II  890 

appeal  from,  of  supreme  court  to  appellate  division  II       892-895 

See  Appellate  Division. 
of   justice  of  the  peace   appealable  to  county  court, 

see  Justice  of  the  Peace. 
after  appeal  to  appellate  division  from  judgment 

or  order  of  supreme  court II       915-916 

of  surrogate's  court,  see  Surrogate's  Court. 

on  appeal  from  surrogate's  court II       933-935 

on  appeal  from  justice  of  the  peace II       955-957 

enforcement  of  by  execution,  see  Execution. 

what,  may  be  enforced  by  execution II        963-964 

what,  enforced  by  proceedings  for  contempt II  966 

See  Contempt. 
in  ejectment  when  estate  of  plaintiff  has  expired. Ill  9,20 

form  of,  in  ejectment Ill  21,  26 

effect  of   Ill       2,  23-24 

when  conclusive Ill  23-24 

against  whom  conclusive Ill  23-24 


lU 


INDEX. 


J L' D<.i M K N T—  (com i n u vd )  :  VOL. 

effect  of,  iu  partitiou,  wbere  brought'  by  iufaut. .  .111 

iulerlocutory,  in  partitiuu Ill 

iiec  Paktitiox. 

final,  iu  partitiou Ill 

i<ee,  also,  Partitiok, 
by  ck'fault  in  action  for  adnieasurouicut  of  dower. Ill 
iuierlocutory,    in    action    for    adnioasurement    of 

dower Ill 

final,  iu  action  for  aduicasurenicnt  of  dowor Ill 

iu  action  of  foreclosure  of  mortgage HI 

iu  strict  foreclosure HI 

in  action  to  foreclose  lien  on  chattel Ill 

in  action  to  foreclose  mechanic's  lien Ill 

in  action  for  determination  of  conflicting  claims  to 

real  property HI 

iu  action  of  waste HI 

iu  action  of  replevin HI 

iu  action  to  annul  a  marriage HI 

in  action  of  divorce HI 

modification  of HI 

in  action  for  separation HI- 

in  action  for  dissolution  of  corporation Ill 

in  action  for  aunulmenf  of  corporation HI 

in  action  against  executor  or  administrator HI 

in  reference  of  disputed  claim  against  decedent's 

estate HI 

in  action  by  creditor  of  decedent  against  next  of 

kin  or  legatee  • HI 

in  action  by  creditor  of  decedent  against'  heir  or  de- 
visee   Ill 

in  action  to  establish  a  will HI 

iu  action  to  determine  the  validity  of  probate  of 

will   HI 

in  judgment  creditor's  action HI 

in  action  against  joint  stock  association Ill 

in  taxpayer's  action  to  prevent  waste HI 

in  action  against  joint  debtors HI 

in  action  to  charge  joint  debtor  not  served.  . .  .HI 
in  action  against  usurper  of  office  or  franchise.  ..HI 

JUDGMENT  CREDITOR'S  ACTION: 

when  barred  by  statute  of  limitations I 

against  executors  or  administrators,  how  enforced     I 

receiver  in I 

defined HI 


PAOE. 

40-41,  'J5 
55 

93 

108 

110-112 
117-119 
132-136 
155-156 
158-159 
1G5-168 

183-184 
1!»2-193 
219-221 
2G1,  262 
273,  274 

277 
278-279 
280-282 

293 
337-339 

345 

355 

367 

375. 376 

383 
390-391 

399-401 
428-434 
440-441 
455-456 
457-458 
405-466 
491-493 

95 
149 

705 
403,  508 


INDEX.  715 

JUDGMENT  CREDITOR'S  ACTION— (con ^mi/e(Z)  :          vol.  page. 

history  of  action Ill  403 

when  may  be  brought Ill  403 

object  of  the  action Ill  403 

how  far  replaced  by  supplementary  proceedings.  .Ill  403 

kinds  of  judgment  creditors'  actions Ill  404 

by  one  holding  property  in  trust  for  others Ill  405-406 

may  be  brought  to  roach  income  of  trust  for  the 

benefit  of  judgment  debtor Ill  406 

408-409 
may  be  brought  to  establish  lien  on  lauds  conveyed 

to  third  person Ill  406-407 

may  be  maintained  to  remove  obstructions  to  sale 

by  execution Ill  407-408 

not  maintainable  against  corporation Ill  408 

except  equitable  action  to  set  aside  a  fi'audu- 

lent  convej^ance,  preventing  an  execution.  .Ill  415 
not  maintainable  to  interfere  with  exempt  prop- 
erty  Ill  408 

or  trust  fund,  where  trust  created  by  someone 

other  than  judgment  debtor Ill  408 

or  earnings  of  judgment  debtor  within  sixty 

days Ill  408 

jurisdiction  of  court  in,  independent  of  statute.  .Ill  409,415 
in  statutory,  or  code,  action  to  reach  equitable  as- 
sets, remedy  at  law  must  have  been  exhausted.  .Ill  409 

judgment  must  have  been  docketed Ill  409-410 

where  docketed Ill  414 

where  execution  must  have  been  issued Ill  411 

execution   must  have   been   returned  unsatis- 
fied     Ill  411-412 

what  is  a  sufficient  issuance  and  return  of  exe- 
cution to  maintain  action   Ill  412-413 

414 
in  equitable  action,  court  can  dispense  with  these 

requirements Ill  409,  411 

also  in  action  by  one  holding  property  in  trust  for 
others,  iTiese  requirements  not  necessary  in  cer- 
tain cases Ill  404-405 

410,  412 

action  not  maintainable  on  foreign  judgment.  ..  .Ill  409-410 
when    maintainable    on    judgment    against    joint 

debtors Ill  410,  412 

judgment  is  conclusive  evidence  of  debt Ill  410-411 

in  code,  or  statutory,  action  in  aid  of  execution, 

judgment  must  have  been  docketed Ill  409-410 

414 

in  such  action  execution  must  be  outstanding. Ill  413-414 


'IG 


INDEX. 


JUDGMENT  CREDITOR'S  ACTION— {continued) :         vol. 
though  action  not  defeated  as  to  real  estate  by 

return  of  execution Ill 

nor  whore  receiver  has  taken  the  property.  ..Ill 

in  aid  of  attachment  I 

by  whom  brought  after  assignment  for  the  benefit 

of  creditors Ill 

what  creditor  may  bring  the  action   Ill 

who  may  join  when  action  brought  by  one  on  be- 
half of  all Ill 

assignee  of  judgment  may  bring,  without  issuing 

new  execution Ill 

who  must  be  made  defendants  Ill 

where  there  are  several  judgment  debtors  and 

one  is  insolvent Ill 

where  one  of  the  judgment  debtors  is  a  surety. Ill 
where  the  judgment  was  against  several  judg- 
ment   debtors,    some    of    whom    were    not 

served Ill 

where     personal     representatives     must     be 

brought  in Ill 

when  heirs  must  be  brought  in Ill 

fraudulent  grantee  or  incumbrancer  must  be 

made  party  defendant Ill 

in  action  to  set  aside  assignment  as  fraudulent, 
when  assignee  must  be  made  party  defend- 
ant   Ill 

complaint  in,  what  to  contain Ill 

answer  in Ill 

lien  of  plaintiff,  how  acquired  in Ill 

nature  and  extent  of Ill 

when  attaches Ill 

how  ends Ill 

injunction  in Ill 

what  may  be  restrained  in Ill 

how  obtained Ill 

when  will  be  granted Ill 

receiver  in Ill 

when  may  be  appointed Ill 

when  necessary  to  perfect  lien Ill 

title    of,    relates    back    to    commencement   of 

action Ill 

provisions  for  extending  receivership  in  sup- 
pleraentai-y  proceedings  do  not  apply  to.  . .  .Ill 

discovery,  when  may  be  had Ill 

how  triable Ill 

default  in,  proceedings  on Ill 


PAGE. 

413 

414 
661-666 

414 
415-416 

416 

416 
416-418 

416-417 
417 


417 

417 
417-418 

418-419 


418 
419-421 

421 
421-424 
422-424 
422-424 

423 
424-426 
424,  425 
424-425 

425 
426-427 
426-427 
422,  424 

426 

427 

602 

427-428 

428 

428 


INDEX.  717 

JUDGMENT  CREDITOR'S  ACTION— (con^wued)  :  vol.  page. 

judgment  in Ill        428-434 

entered  only  on  application  to  court Ill  428 

what  directions  must'  be  contained  in Ill  428 

usual  provisions  of Ill        428-429 

how  property  directed  to  be  sold  in Ill  429 

what'  title  acquired  of  property  sold  under.  ..  .Ill  430 
where  action  is  for  assertion  of  lien  on  real 
and  personal  property,  latter  should  be  di- 
rected by  judgment  to  be  first  applied Ill  430 

provisions    of,    where   fraudulent   assignment 

set  aside Ill  430 

where   several   conveyances   are   attacked   as 

fraudulent Ill  430 

when  rights  of  purchasers  and  grantees  will 

be  protected  by Ill        431-432 

directions  of,  as  to  surplus Ill  430 

provisions  of,  where  action  is  brought  by  cred- 
itor of  insolvent  deceased Ill       430-431 

433-434 

where  brought  by  several  creditors Ill  431 

where  action  brought  to  reach  choses  in 

action Ill        432-433 

where  action  is  brought  to  reach  surplus 

income  of  trust  fund Ill  433 

where  action  is  brought  to  reach  debtor's 
interest  in  contract  of  purchase  of  real 

estate Ill  433 

what  constitutes  election  of  remedies  in Ill  434 

costs  in Ill  434 

See,  also,  Supplementary  Proceedings. 

JUDGMENT  ROLL: 

in  action  to  annul  a  corporation,  where  to  be  filed .  .  .  Ill  345 

JUDICIAL  NOTICE: 

taken  of  constitution  of  United   States  and  laws  of 

congress II  116 

JURISDICTION : 

of  courts  of  record I  55 

cannot  be  exercised  without  the  state I  55 

how  restricted  by  constitution   and   laws   of   United 

States I  55 

intention  to  deprive  courts  of,  never  presumed.  .....  I  56 

in  suits  by  and  against  foreign  corporations I  56,  59 

on  causes  of  action  arising  outside  of  the  state I  56 

for  specific  performance  of  contract  to  convey  lands 

without  the  state I  57 


718  INDEX. 

JURISDICTION — (continued):                                                VOL.  page. 

in  certain  cases   limited I  57 

in  patent  cases    I  58 

as  to  lands  outside  of  the  state I  58 

as  to  penal  laws  of  another  state I  59 

on  habeas  corpus  by  United  States  soldier I  59 

as  to  property   of   non-resident  attached   within   the 

state I  59 

in  ejectment,  against  person  claiming  as  United  States 

officer I  60 

among  what  courts  divided I  60 

when  acquired  in  an  action I  189 

by  substituted  service  of  summons I  215 

of  person,  given  by  general  appearance I  231 

of  subject  matter,  not  given  by  appearance I  232 

irregularity  which  goes  to,  when  cannot  be  waived  I  804 
of  various  courts,  see  their  respective  titles. 

JURORS: 

may  be  drawn  for  adjourned  term I  11 

qualication  of,  see  Trial  Juror. 

withdrawal    of    II  332 

fees  of    II  674 

JURY: 

may  be  discharged  on  Sunday  I  4 

no  instructions  to  be  given  to,  on  Sunday I  6 

cannot  assess  damages  or  deliver  verdict  on  Sunday.     I  5 

what  cases  tried  by II  212-216 

how  right  to  trial  by,  waived II  219-221 

266 

struck,  see  Struck  Jimv. 

foreign,  see  Foreign  Jury. 

how  drawn  on  trial II  290-291 

consultation  of,  see  Trial  by  Jury. 

verdict  of,  see  Verdict. 

new  trial  for  misconduct  of   II  478-481 

on  writ  of  inquiry II  723 

judgtaent,  after  trial  by,  of  specific  questions  of  fact.   II  739-741 

JUSTICES : 

of  supreme  court,  to  appoint  special  and  trial  terms 

in    certain    cases     I  7,  8 

judges  of  certain  abolished  courts  to  be I  3 

may  sit  in  anotlier  department  if  duly  designated.     I  8 

not  to  practice   I  15 

powers   of    I  65 

what  may  do,  out  of  court I  77 

when  may  make  orders  in  action  in  county  court.     I  77 

when  may  entertain  supplementary  proceedings .  Ill  519-520 


I 


INDEX.  719 

JUSTICE'S  COURT:                                                                     VOL.  page. 

limitation  of  actions,  upon  judgment  of I  91 

judgment  of,   supplementary  proceedings  on,   see 
Supplementary   Proceedings. 

JUSTICE  OF  THE  PEACE: 

docket  book,  of  what  facts  evidence II  114 

transcript  of  docket  of,  when  may  be  read  in  evidence.  II  114 

proceedings  before,  how  may  be  proved II  114 

in  adjoining  state,  proof  of  proceedings  before li  121-122 

costs  of  plaintiff,  in  actions  of  which  no  jurisdiction.  .  II  546-551 

transcript  of  judgment  to  be  furnished  by II  687 

who  may  appeal  from  judgment  of  II  936 

judgments  of,  only  reviewed  by  appeal II  937-938 

what  judgments  may  be  reviewed II  937 

to  what  court  appeal  may  be  taken II  937 

when  appeal  must  be  taken II  937-938 

when  notice  required  to  limit  time  to  appeal II  938 

how  time  to  appeal  computed II  938 

remedy  by  motion  to  dismiss,  if  appeal  too  late II  938 

notice  of  appeal,  what  to  contain II  938 

by  whom    signed II  938,  939 

when  undertaking  must  be  served  with II  939,  941 

942 

upon  whom  notice  to  be  served II  939 

how  served  upon  justice II  939 

payment  of  costs  and  fees  upon  serving II  939 

what  defects  upon  appeal  may  be  amended II  940,  941 

how  notice  served  on  respondents II  940-941 

security  to   perfect  appeal II  941-942 

to   stay   execution II  942 

requirements    of    undertaking II  942-943 

service  of  undertaking   II  942,  944 

approval  of  undertaking   II  943 

justification  of  sureties   II  943-944 

new  undertaking    II  944 

when  proceedings  stayed  by   II  944 

filing    of    undertaking    when    justice    cannot    be 

found II  944-945 

return  of  justice,  when  to  be  made II  945-946 

appeal  dismissed,  where  no  return  filed II  945 

justice  can  make  return  after  he  has  gone  out  of 

office II  946 

what   to   contain    II  946-947 

950 

liability  of  justice  for  false  return II  946 

process  must  be  returned II  946-947 

notice  of  appeal  must  be  attached  to II  947 


720  INDEX. 

JUSTICE  OF  THE  PEACE— (coH^tnwed)  :                            VOL.  page. 

return    conclusive    , .   II  947 

further  return  when  may  be  ordered,  and  how..   II  947-948 

proceedings  where  no  return  can  be  had II  948-949 

when  appeal  may  be  heard  upon  affidavits II  949-950 

hearing  when  error  of  fact  alleged II  949-950 

what  questions  may  be  raised  upon  appeal  not  for 

new  trial II  950-951 

errors  need  not  be  set  forth  in  notice  of  appeal. .   II  938,  051 

principles  of  determination    II  951  952 

955-956 

for  what  errors  judgment  of,  will  be  reversed.  ...   II  952 

when  judgment  by  default  will  be  set  aside....   II  952-953 

defendant  must  show  good  defense II  953 

stipulation  for  reversal  and  proceedings  thereon.   II  953 

what  papers  used  on  hearing II  953-954 

at  what  term  hearing  may  be  had II  954-955 

what  judgment  to  be  rendered  on  appeal II  953 

955-956 

judgment  of,  may  be  modified  on  appeal II  955,  956 

judgment  where  new  trial  directed  before II  956 

judgment  roll  on  appeal    II  956-957 

restitution  when  will  be  ordered II  957-958 

when  new  trial  may  be  had  in  county  court II  958-959 

right  to,  determined  by  pleadings. II  958-959 

when  action  deemed  in  county  court II  959-960 

jurisdiction  of  county  court,  after  appeal II  960-961 

what  amendments  of  pleadings  may  be  allowed . .   II  960 

compromise   after   return    II  961-962 

where  new  trial  demanded  in  notice  in  a  case 
where  no  right  to  new  trial,  demand  regarded 

as  surplusage    II  943,  961 

LACHES : 

what  excuses,  on  motion  to  vacate  for  irregularity..      I  801 

LANDLORD: 

when  possession  of  tenant,  not  adverse  to I  88 

when,  may  maintain  ejectment  against  tenant  at  will, 

etc Ill  10 

LAW: 

trial  of  issue  of,  see  Demueeee  and  Issues. 

LEAVE  TO  SUE: 

when   necessary    I  121 

in   action  on  judgment    I  121 

not   necessary   in    action    to    charge   defendant   joint 
debtor    not    served,    with    the    judgment    entered 

against  all    Ill  460 


INDEX.  721 

LEAVE  TO  SUE— {continued)  :                                               VOL.  page. 

in  action  on  mortgage   I  124 

III  124-125 
128 

in  action  on  official  bond I  125,  304 

in  action  to  dissolve  a  corporation I  128 

in  action  by  receiver    I  130 

in  action  against  receiver   I  131 

in   action   by   or    against   committee   of   incompetent 

person I  132 

in  action  of  partition  by  infant I  133 

as   poor   person    I  134 

when  party  may  have  leave  to  defend I  137 

receiver,  must  be  obtained  from  court I  718. 

l^EGACY: 

action  for,  against  executor   Ill        350-352 

See,  also.  Executors  and  Administrators. 
LEGATEE: 

action    by    creditor    against Ill        369-385 

See,  also.  Decedent,  and  Executors  and  Ad- 
ministrators. 

LEGISLATURE : 

when  may  take  away  franchise  of  corporation Ill  342 

LETTERS  PATENT: 

how  proved    II  118 

action  to  vacate,  to  be  tried  by  jury II  213 

judgment  roll  in  action  to  annul,  to  be  filed  in  office 

of  secretary  of  state   II  683 

LETTERS  ROGATORY: 

when  issued    II  43-44 

only  upon  written  interrogatories   II  44 

See  Commission. 

LEVY.    See  Execution. 

LIBEL: 

rule  for  pleading  in   I  330 

when  publication  of,  restrained  by  injunction   I  571 

examination  of  party  in  action  for  II  5 

LIEN: 

of  attorney  for  services   I  44 

of  attorney,  whether  notice  of,  required I  50 

right  of  parties  to  settle  without  regard  to I  48 

how  may  be  enforced I  48 

of  one  suing  as  a  poor  person  I  51 

of  judgments,  see  Judgment. 

46 


( -_  INDEX. 

TjIKX — (conlinurti )  :                                                                        VOL.  PAGE. 

how  ascertained  in  partition Ill  62-54 

publication  of  notice  for   Ill  52-53 

payment   of,   out   of   proceeds Ill  S4 

application   for   payment   out   of   proceeds Ill  89-92 

papers  on  such  application   Ill  91 

notice   of   application    Ill  91 

apportionment  of  proceeds  among   lienors.. Ill  91-92 

what  liens  ordered  paid  in   foreclosure Ill  136 

on  chattel-,  action  for  foreclosure  of Ill  157 

when   and  where   maintained    Ill  157-158 

proct^dinj,'s   in   the  action    Ill  158 

place  of  trial   of    Ill  158 

complaint,  what  to  contain   HI  158 

not  triable  by  jury   Ill  158 

final  judgment  in    Ill  158-159 

what  to  contain    Ill  158-159 

sale  in.  how  to  be  made Ill  159 

seizure  of  chattels  in    Ill  159-100 

proceedings  in   courts  not  of  record Ill  100 

of  mechanics,  see  INIechanics'  Liens. 

of  plaintiff  in  judgment  creditor's  action Ill  421-424 

judgment  creditor  acquires,  by  service  of  order  in  sup- 
plementary proceedings    Ill  499 

LIMITATION  OF  ACTION: 

includes   special   proceedings I  118 

by  people  for  the  recovery  of  real  property I  82 

■what  adverse  possession  bars  people I  82 

by  party  other  than  people,  for  recovery  of  real 

property I  8.3 

for  dower I  84, 110 

III  102 

when  limitation  begins  to  run  against  real  propertj*     I  84 

entry,  when  sutfieient  as  a  claim I  85 

presumption  of  title I  85 

occupation  presumed  to  be  under  legal  title I  85 

possession  under  written  title,  what  included  in.  .     I  85 

when  deemed  adverse I  85 

possession    not    founded    on    written    instrument, 

what  included  in I  87 

when  deemed  adverse I  87 

possession  without  claim,  not  sufficient I  38 

when  iK)ssession  of  tenant,  not  adverse  to  landlord     I  88 

right  not  impaired  by  death  of  occupant I  89 

what  disabilities  prevent  running  of  the  statute..     I  89.110 

actions  other  than  I'oi-  the  recovery  of  real  property     I  90 


INDEX. 


723 


LIMITATION . OF  ACTION—  ( continued )  :  \ 

judgment  or  decree  of  court  of  record 

presumption  as  to  payment  of 

how   presumption   overtbi-own 

how  presumption  of  payment  pleaded.  . . . 

to  redeem  from  mortgage,  when  barred 

on  sealed  instrument 

for  specific  performance 

to  enforce  payment  of  legacy  charged  on  land 

forty  years,  what  actions  barred  in 

twenty  years,  what  actions  barred  in 

six  years,  what  actions  barred  in 


five  years,  what  actions  barred  in.  . .  , 

three  j^ears,  what  actions  barred  in. .  . 

two  years,  what  actions  barred  in.., 

one  year,  what  actions  barred  in 

ten  years,  what  actions  barred  in 

on  contract,  when  barred  in  six  years.  .. 

against  coroner  or  constable 

for  penalty  or  forfeiture 

to  the  people 

given  to  the  prosecutor 

against  executor  or  trustee 

for  negligence 

for  personal  injury  

for  death  by  negligence 

to  annul  a  marriage 

for  escape  

to  recover  strays  seized  on  the  highway. 

to  recover  excess  of  interest  paid 

against  trustee,  for  debt  of  corporation.  .. 

for  equitable  relief 

by  the  people  for  spoliation 

applies  to  the  people 

for  claims  against  tTie  people 

against  non-resident 

against  foreign  corporation 


what  prevents  running  of  statute 

where  defendant  dies  without  the  state 

between  death,  and  granting  of  letters 

where  plaintiff  dies  before  expiration  of  time. 

against'  executors  or  administrators 

effect  of  non-suit  granted 

effect  of  an  injunction  on  time  limited 

reversal  of  judgment,  when  extends  time  of .  . . 
when  extended,  by  submission  to  arbitration. 


Ill 


III 


PAGE. 

90 

90 

90 

91 

92 

92 

92 

92 

82 

83-90 

93 

351 

96 

97 

99 

100 

101 

92 

97,100 


100 

97 

98,  101 

93,  99 

99 

96 

100 

100 

100 

100 

101 

102 

102 

103 

103 

103 

314-31.5 

10.5 

105 

105 

106 

107 

]08 

108 

lOS 

100 


724 


INDEX. 


LIMITATION  OF  ACTIOS— {con tinutd)  : 

discoutinuance,     efifect    of,     where     counterclaim 

pleaded 

what  actions  not  within  the  statute 

computation  of  time  under  statute 

in  action  on  open  account 

by  principal  against  agent  for  negligent  act.. 

whore  demand  necessary 

against  trustee  for  detention  of  property 

on  deposits 

on  demand  notes 

on  checks  

by  trustee  against  cestui  que  trust 

by  surety  or  endorser 

by  attorney  for  services 

by  factor 

for   false    imprisonment 

in  conversion 

for  tort  

against  director  for  failure  to  report 

in  action  for  logacj'  or  distributive  share II 

cause  of  action  barred,  not  a  defense  or  counter- 
claim   

acknowledgment,  or  new  promise  to  prevent  run- 
ing  of  the  statute,  must  be  in  writing 

what  is  sufficient  to  prevent  running  of  statute 

by  whom  acknowledgment  may  be  made.... 

how  statute  must  be  pleaded  to  be  available 

when  general  statute  does  not  apply 

when  action  deemed  begun 

attempt  to  commence  action,  effect  of 

against    executor    or    administrator    on    disputed 

claim  II 

by  creditor  against  next  of  kin,  legatee,  heir  or 
devisee  II 


against  member  of  joint  stock  association,  after 
execution  against  the  association  returned  un- 
satisfied   in 

to  charge  joint  debtor  not  served Ill 


109 
110 
111 
111 
111 
112 
112 
112 
112 
113 
112 
113 
113 
113 
114 
113 
114 
114 
357 

114 

114 
114 
115 
117 
118 
118 
119 

357-360 

371,  359 
381,  383 


442-443 
464 


LIS  PENDENS.    See  Notice  of  Pendency. 


LOAN  COMMISSIONERS: 

action  against,  how  brought I 


156 


INDEX. 


725 


LUNATIC:    •                                                                          VOL.  page. 

how  summons  served  upon I  198 

court  may  appoint  guardian  ad  litem  for I  199 

receiver  in  action  by  or  against I  709 

action  to  annul  marriage  because  one  party  was, 
see  Matrimonial  Actions. 


M. 

MANDAMUS: 

issue  of  fact  joined  upon,  to  be  tried  by  jury II 

final  order  in,  reviewable  by  appeal II 

when  compulsory  reference  in II 

when  lies  to  compel  resettlement  of  case II 

title  to  office  not  determinable  by Ill 

MANDATE: 

sheriff  must  receipt  for I 

amendment  of I 

MARRIAGE: 

limitation  of  action  to  annul I 

of  woman,  does  not  abate  action I 

See  Matrimonial  Actions. 


213 

774 
408-409 
465-466 

480 


23 

781 


96 

812 


MARRIAGE  CERTIFICATE.     See  Certificate. 

MARRIED  WOMAN: 

statute  of  limitations  runs  against I 

what  is  domicile  of,  in  matrimonial  action Ill 

See  Matrimonial  Actions. 


112 

258 

263-264 


MATRIMONIAL  ACTIONS: 

jurisdiction  of  courts  in Ill  245-246 

action  to  annul  a  marriage Ill  246-262 

by  a  woman  married  under  the  age  of  sixteen .  Ill  246-247 

by  either  husband  or  wife Ill  248-257 

for  what  causes  may  be  brought Ill  248 

when  marriage  void Ill  248-249 

when  contracted  before  age  of  legal  con- 
sent   Ill  249-250 

because  former  husband  or  wife  living.  .Ill  250-251 

because  one  party  was  idiot  or  lunatic. . .  .Ill  252-253 
where  consent  was  obtained  by  force  or 

fraud Ill  253-256 

for  impotency Ill  256-257 


726  INDEX. 

MATEIMONIAL  ACTIONS— (coiU  inn cd)  :                          vol.  page. 
proceedings  in  the  action,  what  cndorseniont 

required  on  the  summuus Ill  257-258 

alimony  and  counsel  fee  in Ill  258-259 

order    allowing    person    to    maintain    the 
action  as  next  friend  of  infant,  idiot'  or 

lunatic Ill  259-260 

what  proof  required  on  default Ill  260,  261 

how   proof    taken Ill  260-201 

reference   on   issue   joined Ill  261 

how   judgment    entered    on    referee's    re- 
port   Ill  261-262 

jury  trial  of  issues Ill  262 

motion  for  new  trial Ill  262 

iiiterlocutorj'  judgment,  or  decree  nisi Ill  262,  282 

effect  of  final  judgment Ill  262 

action   for  a  divorce Ill  263-285 

in  what  cases  it  may  be  brought Ill  263 

jurisdiction  exists  by  statute  only Ill  263 

when  married  woman  deemed  resident.  .Ill  263-264 
in  what  cases  plaintiff  not  entitled  to  di- 
vorce,  though   adultery   established Ill  264 

what  procurement  or  connivance  defeats 

action Ill  265-266 

what  condonation  or  forgiveness  defeats 

action Ill  206-268 

cohabitation  as  condonation Ill  266-267 

what  revives  condoned  adultery Ill  267-268 

where  five  years  have  elapsed  since  plain- 
tiff knew  of  adultery Ill  268 

where  plaintiff  also  has  committed  adul- 
tery   Ill  268 

proceedings  in  the  action Ill  269-276 

what  endorsement  required  on  summons. Ill  269 

complaint,  what  to  contain Ill  269-270 

264-265 

how  adultery  alleged  in Ill  269-270 

divorce  can  be  granted  only  for  adul- 
tery alleged  in Ill  276 

whether    necessary    to    negative    pro- 
curement, etc Ill  264-265 

as  to  legitimacy  of  children Ill  270 

as  to  custody  of  children Ill  270 

order  of  arrest  in Ill  270 

receiver,  when  may  be  appointed  in Ill  270 

cannot  be  joined  with  action  for  separa- 
tion   Ill  270,  293 


INDEX.  727 

MATEIMONIAL  ACTIONS— (coH^in7/«/)  :  vol.  page. 

custody    and    care    of    children    pending 

action Ill        296-297 

alimony  and  counsel  fees  pending  action. Ill        296-304 

proceedings  on   default Ill  270 

no  reference  to  take  proof  on  default. Ill        270-271 
allegations   of   adultery,   bow   proved 

on Ill       271,  272 

proof  required  of  no  judgment  of  di- 
vorce against  plaintiff Ill  271 

reference  in Ill  271 

referee  not  to  be  nominated  by  either 

party Ill  271 

is  one  to  hear  and  determine Ill  271 

co-respondent,  service  of  copy  pleading  on. Ill  271 

appearance  of,  to  defend Ill  271 

right    of,     to     intervene,     when     not 

served Ill        271-272 

276 
intervening,  has  all  rights  of  a  party, 

including  right  to  tral  by  jury III  276 

costs  to,  when  allegations  of  adultery 

against,  not  proven Ill  272 

parties  competent  only  to  prove  marriage 

or   disprove   adultery Ill  272 

evidence  to  show  adultery  must  be  clear. Ill  272 
judgment  of  divorce  not  granted  on  evi- 
dence of  prostitute,  or  detective,  or  par- 
amour, unsupported Ill               272 

confessions  of  defendant  admissible Ill  272 

must    be    corroborated    to     warrant 

judgment Ill  273 

interlocutory  judgment  or  decree  nisi Ill  293 

final   judgment   not   to    entered   until 

three  months  after Ill  273 

contents  of Ill  273 

alimony  until  final  judgment  may  be 

provided  for  in Ill       273,  283 

may  include  a  judgment  for  costs III  273 

'     answer  need  not  be  verified  although  com- 
plaint verified Ill  275 

recrimination  or  condonation  must  be 

pleaded Ill  275 

counterclaim    for   divorce    or    separa- 
tion may  be  pleaded Ill  275 

where  interposed  plaintiff  must  reply. Ill  275 

cruel  and  inhuman   treatment  not  a 
defense Ill  275 


728 


INDEX. 


MATRIMONIAL  ACTIONS— {coiUi mi ed)  :  vor,. 

trial,  mode  of Ill 

where    temporary    alimony    granted, 

cause  lias  preference Ill 

jury  trial  matter  of  right Ill 

verdict  in,  conclusive Ill 

judgment  in,  only  entered  by  direction  of 

court Ill 

power  of  the  court  upon  application 

for  after  reference Ill 

proof  required  as  to  absence  of  con- 
nivance,   etc.,    before   rendition    of, 

for  plaintiff Ill 

final,  not  to  be  entered  until  three 
months  after  interlocutory  judg- 
ment   Ill 

regulations  with  regard  to Ill 

legitimacy    of   children,    how   af- 
fected  and   determined Ill 

provisions     for    maintenance     of 

children  and  support  of  wife.  .Ill 
factors   entering   into   determina- 
tion of  amount Ill 

alimony    may    be   ordered    to   be 
paid  out  of  fund  held  in  trust 

for  husband Ill 

action  to  subject  such  trust'  fund 

to  payment  of  alimony Ill 

alimony  usually  allowed  only  for 

joint  lives  of  parties Ill 

where  alimony  not  mentioned  in 
judgment,  it  is  deemed  refused. Ill 

how  far  alimony  property Ill 

modification     of     such     pro- 
visions   Ill 


effect  of,  on  husband's  or  wife's 

property Ill 

effect  of,  on  wife's  dower Ill 

regulations   with   regard   to   cus- 
tody and  care  of  children Ill 

considerations       determining 

award  of  such  custody. ..  .Ill 
modification     of     such     pro- 
visions   Ill 

costs Ill 


PACK. 

275 

302 
275 
275 

274 

274 

264-265 

273 

276-285 

276,  277 
276-277 

279 

280 

280 

280 

280 
281 

277 
278-279 
280-282 
280-282 

277 

277,  278 

278 

278 

278-279 

272,  273 

282 


INDEX.  T29 

MATEIMONIAL  ACTIONS— (CO »-<t«ucrf)  :                          VOL.  page. 

re-marriage,  provisions  as  to Ill  283-285 

action  for  a  separation Ill  285-295 

cannot  be  joined  witli  action  for  divorce Ill  270,  293 

for  what  cause  may  be  maintained Ill  285-289 

can  only  be  bad  when  authorized  by  stat- 
ute   ni  285 

not  to  be  encouraged Ill  285-286 

what  is  cruel  and  inhuman  treatment Ill  286-288 

what  constitutes  abandonment   Ill  288-289 

291-292 

who  may  bring  tlie  action   Ill  289-290 

when  married  woman  deemed  resident Ill  290 

complaint,  what  to  contain   Ill  290 

answer  may  set  up  plaintiff's  misconduct Ill  290 

may  also  set  up  provocation Ill  291,  292 

adultery  of  plaintiff  a  defense   Ill  275,  291 

what  may  be  set  up  as  counterclaim Ill  •    275,  291 

what  is  condonation    Ill  292 

proceedings  in  the  action  Ill  292-294 

referee  not  to  be  nominated  by  the  parties .  .  Ill  292 
proof   as   to    service   of   summons   and   com- 
plaint required  before  reference  ordered.. Ill  292 

proceedings  upon  default   Ill  293 

judgment  may  be  had  only  upon  application 

to  the  court    Ill  293 

order  of  arrest   I  485 

III  293 

care  and  custody  of  children  pending  action. Ill  296-297 

alimony  and  eoimsel  fees   Ill  293,  294 

296-304 

triable  by  court   Ill  293 

provisions   of   judgment  for  maintenance   of 

children  and  support  of  wife Ill  294 

modiiication    of   the   judgment   in   these    re- 
spects   HI  294-295 

provisions  of  judgment  as  to  care  and  custody 

of   children    Ill  295 

modification  of  such  provisions Ill  295 

costs Ill  295 

judgment  may  be  revoked  on  evidence  of  re- 
conciliation   Ill  295 

custody  and  care  of  children  pending  an  action 

for  divorce  or  separation   Ill  296-297 

considerations  determining  award  of   Ill  296 

parent  to  whom  awarded  may  be  required  to 
give  security  not  to  remove  children  from 

jurisdiction Ill  296 


730  INDEX. 

MATRIMONIAL   ACTIOXS—( ro»i7nn/od)  :                            vol.  page. 
application  for  order  as  lo,  how  made  and 

proceedings  on    Ill  296 

alimony  and  counsel  fees  pending  a  matrimonial 

action Ill  296-304 

in  action  to  annul  marriage Ill  258-259 

296 
in  action  of  divorce  or  separation,  power  to 

•  grant  rests  on  statute  solely Ill  297 

not  allowed  unless  rolation  of  husband 

and  wife  exists   Ill  297 

granting  of  discretionary Ill  287 

rules     with     regard    to,     in     action    of 

divorce Ill  297-299 

rules  with  regard  to,  in  action  of  separa- 
tion   Ill  299-300 

for    what    specific    purposes    allowances 

may  be  made  Ill  300 

ponding,  and  for,  appeal    Ill  300 

wliat  court  considers  in   fixing  amount 

of Ill  300-301 

modification  of  order  for   Ill  301-302 

order    reducing    alimony    appealable    to 

appellate  division   Ill  302 

application  for  the  order Ill  302-30-1 

to  be  made  on  notice Ill  302 

on  affidavit    Ill  302 

when  made    Ill  302-303 

what  to  be  made  to  appear  on   ...  .Ill  303 

reference   on    Ill  303 

order  for,  what  to  contain Ill  304 

payment  of,  how  compelled   Ill  304-308 

sequestration    of    defendant's    prop- 
erty   Ill  304-306 

punishment  for  contempt Ill  306-307 

applicability  of  these  remedies 
to  foreign  judgment  of  di- 
vorce   HI  304-308 

cannot  be  enforced  by  execution.  .  .  .Ill  304 
nor  by  supplementary  proceed- 
ings   HI  513,515 

nor  by  striking  out  answer.  .  .  .Ill  307-308 

MECHANIC'S  LIENS: 

action  for  enforcement  of,  on  real  property HI  161 

in  what  courts  brought Ill  161-162 

parties   in    Ill  102-103 

effect  of  failure  to  join  necessary  parties.  .  .Ill  163 


INDEX.  731 

MECHANIC'S  LIEN— (con^i»MC(0.                                       vol.  page. 

proceedings  in  the  action   Ill  164 

may  be   carried  on   concurrently  with  action   to 

recover  contract  price   Ill  164 

consolidation   of    Ill  164 

oflfer  to  pay  into  court  in Ill  164-165 

judgment  in    Ill  165-168 

form  of Ill  165 

what  may  provide  for  Ill  166-168 

deposit  of  specific  property Ill  166 

deficiency Ill  166 

as  to  laborer's  or  material  man's  lien Ill  166 

when  may  direct  personal  judgment Ill  166-168 

costs  and  disbursements  in   Ill  168 

discretionary Ill  168 

discharge  of  lien  for  failure  to  commence  action 

to  foreclose  lien,  after  notice Ill  168-169 

in  courts  not  of  record   Ill  169-171 

nature  of   Ill  169 

what  courts  have  jurisdiction  of Ill  169-170 

service  of  summons  by  publication Ill  170 

proceedings   in    Ill  170-171 

action  for  enforcement  of,  under  contract  for  public 

improvement Ill  171 

action  for  enforcement  of,  on  vessels Ill  171 

MEMORANDUM: 

use  of,  see  Trial  by  Jury. 
See,  also,  Witness. 

MERITS,  AFFIDAVIT  OF.     See  Affidavit  of  Merits. 

MISTAKE : 

of  officer  of  court,  how  corrected   I  18 

of  court,  party  not  to  suffer  by I  770 

relief  against,  when    I  796 

mvist  be  applied  for  within  one  year I  796 

notice  required  to  set  time  running I  796 

power    of    court    to    relieve    against,    not    given    by 

statute I  797 

what  will  be  relieved  against  I  797 

relief  against,  discretionary   I  797 

relief  will  be  denied  for  laches  I  798 

MORTGAGE: 

when  leave  to  sue  upon,  necessary   I  124 

who  must  be  plaintiffs  in  action  to  foreclose I  175 

who  must  be  defendants  in  action  to  foreclose I  176 

person  liable  for  deficiency  may  be  joined  as  defend- 
ant        I  177 


732  INDEX. 

'MORTGAGE— (continued)  :                                                       vol.  paoe. 

when  notice  of  pendency  must  be  filed  in  action  of   . .  .1  237 
foreclosure  of,  see  Foreclosure  of  Mortgage. 

nature  of,  at  common  law    Ill        121-122 

nature  of.  in  equity   Ill        122-123 

to  be  filed  before  conveyance  on  judicial  sale Ill  142 

MORTGAGEE: 

cannot  maintain  ejectment    Ill  7 

in  action  by,  against  mortgagor  for  waste,  latter's  in- 
solvency need  not  be  shown  Ill  191 

8e^,  also,  Foreclosure  of  Mortgage. 

MOTIONS: 

defined I  245 

contested  cannot  be  heard  in  chambers I  9 

when  made  out  of  court  in  first  district I  78 

not  a  remedy I  245 

ex  parte  and  contested I  245 

enumerated,   defined    I  245 

non-enumerated,  defined   I  246 

where  made  I  246 

before  a  judge  out  of  court I  246 

in  first  district I  249 

when  may  be  heard  by  another  judge I  250 

must  be  made  at  special  term,  exceptions I  248 

contested  cannot  be  made  at  chambers I  249 

in  seventh  judicial  district   I  249 

for  irregularity,  when  made   I  246 

to  set  aside  judgment,  when  made I  246 

to  change  place  of  trial,  when  made I  247 

for  settlement  of  issues,  when  made I  247 

to  correct  pleadings,  when  made  I  247 

requisites  of  papers,  on   I  50 

when  defects  in  waived I  250 

copies  of  papers  must  be  served  with  notice  of I  251 

when  copies  need  not  be  served   I  251 

only   papers   served,   or   referred   to   in   notice   to   be 

read,  on   I  251 

how  new  facts  presented  by  moving  party  on I  251 

See,  also.  Affidavit. 

See,  also.  Petition. 

opposing  affidavits  on  I  263 

See,  also.  Notice  of  Motion. 

costs  on,  must  be  asked  if  desired I  264 

See,  also,  Oedeb  to  Show  Cause. 

See,  also.  Stay  of  Proceedings. 

when  notice  of,  may  be  countermanded I  208 

hearing,  order  of   I  269 


INDEX.  733 

MOTIONS— (conYmwcd)  :                                                             VOL.  PAGE, 

objections,  how  taken  on    I  269 

new  proof,  how  may  be  presented I  269 

new  proof,  when  allowed   I  269 

reference,  when  ordered  upon  hearing  of I  269 

mode  of  examination  of  witness  on I  270 

adverse  party  not  to  be  examined I  270 

default,  how  taken  on I  270 

what  relief  may  be  granted  on  default I  270 

when  default  will  be  opened  I  271 

contested   motion   can   only   be   renewed   by   leave   of 

court I  271 

when  leave  will  be  granted   I  271 

how  motion  made   I  272 

practice  on  motion  to  renew  I  272 

renewal  of  ex  parte  motion I  272 

to  whom  application  for  to  be  made I  272 

when  order  for  must  be  vacated I  272 

renewal  without  leave,   contempt    I  273 

re-argument,  application  for   I  273 

conditions  may  be  imposed,  upon  granting  discretion- 
ary   I  279 

acceptance   of    I  279 

when  must  be  performed   I  279 

how  performed   I  280 

costs   of    I  280 

discretionary I  281 

amount  of    I  281 

when  proceedings  stayed,  for  non-payment  of .  .  . .  I  281 

waiver  of  such  stay I  282 

when   stay  may   be   insisted   on   in   first  depart- 
ment    I  282 

costs  of,  when  taxed  in  cocts  of  action I  282 

for  interpleader,  see  Interpleader. 

to  make  pleading  definite  and  certain I  388 

to  vacate  or  modify  order  of  arrest   I  515 

See,  also,  Arkest  and  Bail. 

to  vacate  or  modify  injunction  I  606 

See,  also,  Injunction. 

to  vacate  attachimcnt  for  irregularity I  676 

See,  also,  Attachment. 
for  appointment  of  receiver,  see  Receiver. 
for  provisional  remedy,  to  be  decided  within  twenty 

days I  752 

for  amendment  I  794 

to  vacate  for  irregularity,  should  be  made  promptly.  I  801 
for  substitution  of  parties,  see  Continuance  of 
Action. 


734  INDEX. 

MOTIUNS — (continued)  :                                                               VOL.  PAGE. 

cannot  be  decided  after  death  of  party I  831 

for    discovery,    sec    Discovery    of    Books    and 

Papebs. 
to  cliange  place  of  trial,  see  Place  of  Trial. 

stay  on  accou:it  of  non-pa^-uient  of  costs  on II  208-209 

for  stay  of  proceedings,  how  made II  209-210 

for  jury  trial  of  issues  II  229 

to  correct  calendar    II  239 

for  judgnient  on  pleadings  at  trial II  302 

.S'ee  Trial  by  Jury. 

for  nonsuit,  when  made   II  •"••S 

for  verdict  for  non- joinder  of  party II  329-331 

to  strike  out  evidence    II  344-345 

349,351 
to  set  aside  verdict  for  improper  remarks  in  summing 

up II  350-351 

reference  not  usually  ordered  on  a  question  of  fact 

arising  on    II  413 

to  refer,  see  Reference. 

to  confirm  referee's  report,  when  may  be  noticed II  445 

for  judgment  after  reference  to  take  account II  447 

to  set  aside  report  of  referee   II  448-449 

for  new  trial    II  470-517 

See  New  Trial. 

costs  of.  when  granted   II  563-5G6 

to  compel  third  party  to  pay  costs II  585 

amount  of  costs  of  II  565,  612 

for  additional  allowance,  see  Additional  Allow- 
ance and  Costs. 
to  vacate  judgment,  see  Judgment. 

costs  of,  how  enforced II  565-566 

964, 966 

for  leave  to  issue  execution  after  five  years II  971 

MUNICIPAL  CORPORATION: 

people  may  be  plaintiff  in  action  for   conversion   of 

funds  of   I  154 

people  may  be  plaintiff  in  action  to  restrain I  155 

taxpayers  may  sue  to  prevent  waste  of  property  of .  .      I  157 

how  summons  served  upon    I  205 

ordinance,   resolution,  by  law  or  proceeding  of,   how 

proved  II        114-115 

costs  in  action  against    II        569-571 

See  Costs. 
on  appeal  by,  security  not  necessary  to  perfect  appeal.  II  792 

MUNICIPAL  COURT  OF  THE  CITY  OF  NEW  YORK: 

appeal  from,  to  supreme  court  II  881 


INDEX.  735 

N. 

NE  EXEAT:                                                                               vol.  page. 

writ  of,  abolished I  483, 496 

NEGLIGENCE: 

action  for,  when  barred I  98, 101 

after  death  by,  when  barred I  99 

examination  of  party  in  action  for II  4,  IS,  22 

NEGOTIABLE   PAPEK: 

pleading  upon I  329 

NEWLY  DISCOVERED  EVIDENCE: 

new  trial  for II  488-492 

See  New  Trial. 

NEWSPAPER: 

fees  for  publishing  notice  in II  674-675 

NEW  TRIAL: 

for  erroneous  admission  or  exclusion  of  evidence 

in  trial  by  court II  387 

for  lack  of,  or  failure  to  file,  decision  on  trial  by 

court II  389-390 

motion  for II  470 

motion  for,  after  trial  of  issues  by  jury II  228,  230 

case  necessary  on  such  motion II  454 

in  what  cases  motion  for,  made II  470-471 

facts  can  be  reviewed  only  by  motion  for,  after 

jury  trial II  470.  815 

where  motion  for.  may  be  made II  472-473 

on  judge's  minutes,  where  made  and  when II  472 

474-477 

on  what  grounds II  474,  476 

only  after  jury  trial II  475 

entertainment  of,  discretionary II  475 

after  nonsuit,  etc II  475 

only  heard  at  term  where  cause  was  tried.  ...  II  475-476 

grounds  on  motion  must  be  specified II  476 

exception  not  essential  to II  476 

improper  remarks  of  judge  to  jury  may  be  re- 
viewed on II  476 

motion  for,  at  appellate  division,  when  made II  472 

when  exceptions   ordered  to  be  heard  at,   in 

first  instance II  504-505 

how  order  for  such  hearing  made II  506 

how  order  for  such  hearing  revoked II  505 

when  order  for,  may  be  made II  384 

505-506 

cannot  be  made  by  county  court II  .507 

cannot  be  made  after  special  verdict II  507 


736 


INDEX. 


KEW  TRIAL — (continued)  :                                                       vol.  page. 

entry  of  judgment  after  such  order II  507-508 

motion  for  new  trial  cannot  be  made  at  special 
term,  while  order  for  hearing  exceptions  at 

appellate  division  in  force II  473,  507 

when   order   for   such   hearing   can   be   made 

after  denial  of  motion  on  judge's  minutes..   II  506-507 

papers  on,  what  they  are  and  by  whom  made  II  508 

questions  of  law  only  to  be  considered  on.  . .  .   II  508-509 
what  order  appellate  division  may  make  on 

hearing II  509 

what  notice  of  hearing  to  be  given II  509 

motion  for,  at  special  term,  when  must  be  made  at  II  472 

478,  487 

notice  of  motion  for,  when  must  be  given II  472-473 

motion  for,  to  surrogate,  after  trial  by  jury  of  is- 
sues of  fact  arising  in  surrogate's  court II  472 

what  notice  for,  must  be  given II  472-473 

for  irregularity II  478-484 

papers    on    motion    for II  482-483 

case  not  required  on II  477 

notice   of   motion   need  not  state  the   irregu- 

larity  upon  which  the  motion  is  based II  483 

for  misconduct  of  jury II  478-481 

for  other  irregularities II  481-482 

for  sui*prise   II  484-488 

grounds  for II  484-487 

request  for  postponement  of  trial  necessary. .  II  486,  487 

when  motion  for,  may  be  made II  487 

case  not  required  on II  487 

for  newly  discovered   evidence II  488-492 

must  be  made  at  special  term II  478 

must  be  made  promptly II  492 

what  must  be  shown  on  motion  for II  488 

not  granted  for  cumulative  evidence II  489-490 

must  be  material  to  the  issues II  490 

must  be  decisive  of  the  case II  490-491 

motion  for,  must  be  made  on  case II  491 

affidavits  of  witnesses  must  be  presented II  491 

opposing  motion  for II  491-492 

because  verdict  against  evidence II  493-497 

where  motion  must  be  made II  493 

rules  to  be  considered  in  granting II  493-495 

moving  party  need  not  have  requested  verdict  II  495 
rule  in  actions  vindictive  iu  their  nature,  such 

as  libel,   etc II  496 

rule  where  verdict  should  have  been  for  nomi- 
nal damages II  496-497 


INDEX.  737 

NEW  TRIALr^ {continued)  :                                                      VOL.  page. 

for  insufficient  or  excessive  daniases II  497-499 

wliere  motion  for,  may  be  made II  497 

discretionary  with  tlie  court II  497 

granted  in  actions  of  tort  and  contract II  497 

considerations  upon  granting II  497-498 

after  second  trial II  498 

'  rule  in  actions  vindictive  in  their  nature,  such 

as  libel,  etc II  498 

for  insufficient  damages II  499 

motion  for,  on  exceptions II  500 

order  for II  500 

grounds  upon  whicli  made  and  granted,  to  be 

specified II  5ii0 

presumption  where  no  ground  stated II  500-501 

entry  and  service  of II  501 

efeect  of II  503-504 

terms  of  granting II  501-503 

motion  for,  at  appellate  division  after  interlocutory 

judgment II  509-511 

in  what  cases  may  be  made II  509-510 

only  questions  of  law  raised  on II  510 

hearing  of II  510 

what  order  appellate  division  may  make II  511 

appeal  lies  to  court  of  appeals  from  appellate 

division  order II  511 

after  trial  of  specific  questions  of  fact II  511-517 

after  trial  of  issues  by  jury 11  511-514 

where  motion  made II  512 

may  be  made  on  minutes II  512 

better  practice  to  make  it  at  special  term,  on 

application  for  judgment II  512 

must  be  made,  or  party  deemed  to  acquiesce 

in  verdict II  512 

what  reviewed  on II  513 

where  made  at  special  term,  should  be  on  case  II  513 

rule  in  deciding II  513 

review  of  decision  of  motion II  513-514 

after  trial  of  specific  questions  of  fact  by  referee.   II  514 
in  ejectment,  see  Ejectment. 

cost's  of  motion  for II  610-612 

in   county   court   on   appeal   from   justice's   court. 

when  may  be  had II  958.  959 

in  action  for  determination  of  conflicting  claims  to 

real  property Ill  184-185 

N3XT  OF  KIN: 

action  of  creditor  against Ill  S69-S85 

iSce,  aho,  Decedext. 

47 


73S 


INDEX. 


NON-RESIDENT:  vol. 

action  agrainsi.  when  barred I 

maj'  obtain  leave  to  sue  as  poor  person I 

how  served  by  publication 1 

attaoliment  against I 

judgment    against,     on     service     by     publication, 

against  what  property  enforced I 

NONSUIT: 

motion   for,   Avlien  made II 

for  want   of  parties   II 

when  plaintiff  cannot  submit  to II 

plaintiff  need  not  be  called  on II 

compulsory,  when  granted II 

may  be  ordered  at  any  stage  of  the  case II 

grounds  of  motion  for,  should  be  stated II 

if  not  stated,  no  error  to  deny  for  defect'  which 

might  have  been  supplied II 

if  grounds  stated  not  sufficient,  no  error  to  refuse, 

though  good  grounds  exist II 

on  motion  for,  plaintiff  may  be  permitted  to  open 

case II 

when  right  to  go  to  jury  waived II 

effect  of  denial  of  motion  for II 

effect  of  granting II 

difference  between,  and  ordering  verdict II 

difference  between,  and  dismissal  on  the  merits.  .  II 

NOTARY: 

certificate   of   protest   of,   when   presumptive  evi- 
dence    I 

NOTARY  PUBLIC: 

certificate   of  presentment   or   protest,   when  evi- 
dence    II 

original  protest,  when  evidence II 

memorandum  of  protest,  when  evidence II 

books  of  protest,  Avhen  evidence II 

proof  of  presentment,  etc.,  in  another  state II 

NOTE  OF  ISSUE: 

when  to  be  filed II 

what  to  contain II 

date  of  issue II 

claim  to  preference  must  be  stated  in,  except  in 

certain  localities II 

failure  to  file,  how  remedied II 

of  motion  for  new  trial  at  appellate  division II 

fee  for  filing  in  Nf^w  York  county II 

cf  appeal  to  appellate  divi.s'nn II 


PAOE. 
103 

135 
218 
618 

693 

308 
330-331 
331-332 

332 
333-335 

335 

335 

336 
336 

336 
336,  816 

338 
338,  696 

339 
852-853 


336 


98-100 

100-101 

100-101 

100-101 

101 


238,  269 

238 
238 

238 
239 

509 

665 

911-012 


INDEX. 


739 


NOTICE:     ■                                                                                VOL.  page. 

application  for  guardian  nd  litem  I  183 

of  no  personal  claim,  when  may  be  served  with 

summons I  197 

of  service  bj'  publication,   to   be  published   with 

summons I  225 

publication    of,    with    summons,    in    matrimonial 

actions I  226 

in  action  of  partition I  226 

of  application  for  deposition I  261 

when  must  be  in  writing I  283 

to  produce,  when  may  be  by  parole I  283 

of  entry  of  judgment,  when  does  not  limit'  time  to 

appeal I  283 

publication  of,  see  Publication. 

when  required  in  application  for  injunction I  584 

of  application  for  discharge  of  property  from  at- 
tachment       I  684 

of  application  for  receiver  of  corporation,  to  whom 

given I  To.") 

to  creditors,  by  receiver  of  corporation I  740 

of  appeal,  when  amendment  of I  777,  791 

of  motion  to  discontinue,  when  required II  191-192 

of  exception,  see  Trial  of  Issues  of  Fact  by 

THE  Court. 
of  hearing  before  referee,  see  Eefekee. 
of  motion  to  confirm  referee's  report,  when  may 
be  served,  see  Referee. 

for  new  trial II  472 

of  taxation  of  costs II  648 

fees  for  publishing II  674-675 

to  defendant,  of  computation  of  damages II  710-712 

of  hearing  on  writ  of  inquiry II  723 

of  appeal,  what  to  contain II  782-784 

904 

from  surrogate's  court II  921 

from  justices'  court II  938-939 

of  motion  for  leave  to  issue  execution II  971 

of  sale,  see  Sale. 


NOTICE  OF  ARGUMENT: 

of  motion  for  new  trial  at  appellate  division II 

for  court  of  appeals,  how  to  be  served II 

on  appeal  to  appellate  division II 

NOTICE  OF  MOTION: 

cannot  be  served  on  Sunday I 

must  be  for  the  first  day  of  term,  exceptions.  ...  I 


509 

864.  865 

867 

911 

5 
263 


740  INDEX. 

NOTICE   OF   MOTION — (contiucd)  :                                        VOL.  PAGE. 

form  and  t-outents  of 1  264 

must  bo  aoooinpanioil  with  copies  of  papers I  204 

for  irregularity,  form  of I       2<»4,  803 

relief,  how  stated  in 1  204 

costs  must  be  aslied  for.  if  desired 1  204 

service  of I  264 

when  may  be  coiuiteruianded I  268 

for  judgment  on  account  of  frivolous  pleading.  ...     I  380 

when  must  be  given  in  vacating  injunction I  006 

NOTICE  OF  PENDENCY: 

Avhen  may  be  filed I  2.37 

in  action  of  foreclosure,  when  must  be  filed I  237 

Avhen  notice  becomes  operative I  238 

in  what  actions  may  be  filed I  23S 

in  action  of  ejectment I  2.30 

where  warrant  of  attachment  has  been  issued...  .     I  2.39 

contents  of I  240 

in  foreclosure  cases I  240 

description  of  lands  in I  240 

recording  of I  240 

when  may  be  filed  by  defendant I  240 

effect  of I  241 

in  action  of  foreclosure I  241 

in   action  for  determination  of  claim  to  real 

property I  241 

how  far  commencement  of  action I  241 

amendment  of I  242 

when  new  notice  required  after  amendment I  243 

when  notice  may  be  cancelled I  243 

upon  warrant  of  attachment I  0.51 

cancellation  of,  after  attachment  vacated I  090 

must  be  filed  in  partition Ill  40 

in  judgment  creditor's  action,  how  indexed Ill  421-422 

NOTICE  OF  TRIAL: 

may  be  given  for  adjourned  term I  11 

either  party  may  serve II  233,  209 

when  to  be  served II  233 

for  what  courts  served II  233 

when  new,  required,  if  cause  not  reached II  2.33-2.34 

when  separate  defendants  may  serve II  234 

when  required  after  amendment  of  i)leadings.  . .  .   II  234-2.3.5 

defects   in   II  2,34 

remedy  for  defective  or  irregular II  230 

])reference,  how  demanded II  230 

See  Preferred  Causes. 


INDEX.  741 

'KOTIVK  OF  TRIAL,— {continued)  :                                          vol  page. 

wlieu  must  state  that  inquest  will  be  taken II  23G 

may  specify  relief  to  be  taken II  2:30 

eouutermaud  of II  2.37 

■when  party  who  has  not  served,  may  take  default.  II  2G5 

NOTICE  TO  rilODUCE: 

when  necessary II  lo4-l(i5 

what  must  contain II  105 

■  service  of II  105-106 

of  books  of  foreign  corporation,  when  must  be 

served II  105 

in  other  cases,  what  service  required....   II  105-106 

effect  of II  106 

NUISANCE: 

parties  to  action  for  a I  ISO 

when  will  be  restrained I  5(J4 

action  for,  in  what  county  to  be  brought II  127-130 

action  for,  to  be  tried  by  jury II  212 

213-214 

when  plaintiff  in,  waives  right  to  jury  trial II  214 

defined Ill  194 

remedy  for Ill  194-195 

when  action  for,  may  be  maintained Ill  195-196 

may  be  either  for  damages,  or  for  injunction  to  re- 
strain nuisance Ill  195 

who  may  be  plaintiff  in  action  for Ill  194-196 

against  whom  action  of,  ma.v  be  brought Ill  196 

proceedings  in  tlie  action Ill  197 

pleadings Ill  197 

place  of  trial Ill  197 

how  triable Ill  197 

how  damages  assessed  on  default Ill  197 

injunction   pending   action Ill  197 

judgment  in Ill  197 


o. 

OATH.     See  Affidavit. 

fees  for II  G62 

OBJECTIONS: 

in  examination  of  party  before  trial II  27-28 

on  commissions,  to  questions II      57.  58-59 

on  trial,  to  offers  of  evidence,  or  to  question,  see 
Trial  by  Jury. 


742  INDEX. 

occur  ATION:                                                                      vol.  page. 

of  real  property  luuler  written  instrument I  85 

wlicn  deemed  adverse I  85 

of  real  property,  not  founded  on  written   instru- 
ment    I  87 

what  included  in I  87 

when  deemed  adverse I  87 

OFFER  OF  EVIDENCE.     See  Trial  by  Jury. 

OFFER  OF  JUDGMENT.    See  Compromise. 

costs  where,  has  been  made II       587-588 

626 
after  appeal  from  justices'  court II       961-962 

OFFER  TO  LIQUIDATE.      See  Damages. 

OFFICE: 

action  against  usurper  of,  see  Usurper  of  Office. 

OFFICER: 

limitation  of  action  against I        97, 100 

continuance  of  action  by  or  against I  824 

in  action  against,  when  indemnitor  to  be  substi- 
tuted    II    1024-1028 

See  Execution. 
of  corpcratlon,  action  against,  see  Corporation. 
of  joint  stock  association,  see  Joint  Stock  Associa- 
tion. 
may  be  examined  in  supplementary  proceedings,  see 
Supplementary  Proceedings. 

OFFICIAL  ACTS: 

when  will  be  restrained I  5G7 

III       454-455 
action  by  taxpayer  to  review,  see  Taxpayer. 

OFFICIAL  BONDS: 

leave  to  sue  on I  125 

of  public  officers  generally I  125 

who  are  such  officers I  127 

where  action  brought I  127 

when  notice  of  application  required I  127 

when  people  may  sue  upon I  1 ."» 

See,  also,  Name  of  Officer,  under  its  title. 

OMISSIONS.     See  Mistakes. 


INDEX. 


743 


OPEN: 

right  to,  and  close 

See  Trial  by  Jury. 


VOL. 

.  u 


PAGE. 

304-306 


ORDER: 

defined 

when  made  out  of  court,  in  first  district 

what  judge  may  malie,  out  of  court 

how  such  order  vacated 

for  substituted  service  of  summons,  contents  of . . . 

must  be  filed,  within  ten  days 

for  publication  of  summons,  by  whom  made 

must  be  made  by  judge 

what  must  contain 

by  whom  made 

by  whom  should  be  drawn 

when  should  be  submitted  to  the  court 

how  settled 

remedy,  where  order  does  not  comply  with  decision 

form  of 

all  papers  used  on  motion  should  be  recited  in.  . .  . 
how  reference  made  to  petition  on  which  granted. 

when  preliminary  objections  should  appear 

grounds  of,  when  proper  to  be  stated 

how  signed,  or  certified 

entry  of 

how  to  be  entered 

by  whom  entered 

penalty  for  failure  to  enter 

ex  parte,  need  not  be  entered 

when  ex  parte  may  be  entered 

when  judge  ma.v  require  to  be  entered 

papers  used  on,  must  be  filed 

when  if  takes  effect 

when  decision  deemed  made 

effect  on  stay  of  proceedings 

must  be  obeyed,  though  erroneous 

copy  of,  when  must  be  served 

how  service  should  be  made 

effect  of  conditions  in 

modification  of 

costs  in  

ex  parte,  how  vacated 

one  judge  cannot  vacate  order  made  by  another. . 

of  interpleader 

for  bill  of  particulars,  form  of 

for  amendment  of  pleading,  what  should  provide. 


245,  274 
77 
77 
77 
216 
217 
223 
223 
223 
274 
274 
274 
275 
275 
275 
275 
276 
276 
276 
276 
277 
277 
277 
277 
277 
278 
278 
278 
278 
278 
279 
279 
279 
279 
279 
280 
281 
280 
280 
313 
357 
368 


744  INDEX. 

OKDEK — (cantiiiucil)  :  vol.  page. 

for  arrest,  by  whom  granted 1  511 

wheu  may  be  graiiti-d 1  512 

euiiteuts   of   order I  514 

i<(C,  also,  AkiU':st  and  Bail. 

for  injuuctiou,  what  should  recite I  587 

remedy  for  irregularity  in I  801 

for    discovery,    sec    Discovery    of    Books    and 
Papers. 

See  Examination  before  Trial. 
See  Commission. 
for  production  of  document  at  trial,  when  neces- 
sary     11  84-a5 

by  whom  made    II  84 

atfidavit  for II  84 

service  of II  84 

when  witness  may  be  relieved  from II  85 

Sre  Subpoena  Duces  Tecum. 
See,  also,  Witness. 

removing  place  of  trial II        168-H)9 

appeal  from  such  order II  169 

Avhat  to  contain II        168-169 

See  Place  of  Trial. 
for  discontinuance  on  stipulation,  how  entered...   II       186,190 

necessary II       190, 193 

See   Discontinuance. 

settling  issues,  what  to  contain II  230 

whether  appealable II  230 

opening  inquest  for  favor,  whether  appealable. ...  II  265 

whether  order  signed  by  clerk  is  a  decision  on  trial 

of  issues  of  fact  by  the  court II  394 

of  reference,  see  Reference. 
of  reference,  appealable  to  appellate  division....   II  419 

for  new  trial,  see  New  Trial. 
for  security  for  costs,  see  Security  for  Co.ts. 
compelling  payment  of  costs  by  third  party,  how 

enforced II        585-586 

distinction  between,  and  judgment II  680 

for  trial  of  issues  in  action  against  a  corporation.   II        707-708 
what   intermediate,   may  be   reviewed   on   appeal 

from  final  judgment  or  decree II       810-813 

what,  appealable  to  court  of  appeals,  see  Court 
OF  Appeals. 
what,  of  inferior  court  appealable  to  appellate  di- 
vision     II  877 

879-880 
what,  of  supreme  court,  appealable  to  appellate 

division  of  same  court II        895-898 


INDEX. 


745 


ORDER — {continued)  :  vol. 

of  surrogate's  court,  what'  appealable II 

on  appeal  from  surrogate's  court II 

for  examination  of  judgment  debtor,  see  /S'UPPLE- 

MENTARY    PROCEEDINGS. 

ORDER  TO  SHOW  CAUSE: 

what  judge  may  make I 

when  county  judge  cannot  make I 

when  proper I 

in  what  cases  will  be  made I 

what  must  be  stated  to  obtain I 

is  discretionary I 

requirements   of   the   order I 

by    whom    made I 

how  served I 

why  proceedings  should  not  be  stayed I 

for  appointment  of  receiver,  see  Receiver. 

amendment  of I 

ORDINANCE: 

of  municipal  corporation,  how  proved II 

of  another  state  or  foreign  country,  how  proved.  .  II 

OVERSEERS  OF  THE  POOR: 

when  may  sue  or  be  sued I 


page. 

917-919 

935 


78 

2G5 
265 
265 
265 
265 
266 
266 
267 

791 

114-115 
118 

156 


P. 

PAPERS: 

filing  of,  see  Filing  of  Papers. 

service  of,  see  Service. 

on  motion,  requisites  of 

when  defects  in,  waived 

on  which  order  granted,  must  be  filed 

how  to  be  endorsed  and  subscribed 

must  be  folioed 

to   be  legibly   written 

when  order  for  filing  will  be  granted 

in  arrest  and  bail 

must  be  filed 

on  which  injunction  granted 

See,  also,  Injunction. 

upon    granting   attachment I 

See,  also,  Attachment. 

discovery    of,    see    Discovery    of    Books    and 
Papers. 
request  for  admission  of  genuineness  of II 

effect  of  refusal II 


250 
250 
278 
283 
284 
284 
290 
496,  505 
524 
585 

630 


107 
107 


r^G 


INDEX. 


PAPERS—  ( con  t  imted )  :                                                                 VOL.  PAGE. 

filed  In  various  public  offices,  when  evidence 11  109-112 

in  court  or  department  of  U.  S.,  how  certified  as 

evidence 1 1  IKi-llS 

proof  of,  upon  trial II  324-325 

how  procured  from  opposite  party II  325 

court  decides  whether  thej'  must'  be  produced.  ...  II  325 
not  evidence  in  case,  unless  offered  and  received 

as  such II  325 

received  generally,  unless  otherwise  limited II  325 

how  much  must  be  read  when  put  in  evidence. ...   II  325-32G 

proof  to  entitle  secondary  evidence  to  be  given. ...   II  326 

sheriff's  fee  for  serving II  630,  666 

on  appeal  to  appellate  division II  887,  888 

904-911 

on  appeal  from  surrogate's  court II  930 

PARTICULARS.      See  Bill  of  Particulars. 

PARTIES: 

guardians  ad  litem  not   1  12 

in  partition  when  served  with  pleadings I  12 

who  are I  139 

who  may  be  joined  as  plaintiffs I  139 

who  may  be  defendants I  139 

where  one  will  not  consent  to  join  as  plaintiff. ...     I  140 

where  party  in  interest  must  sue  as  plaintiff I  140 

who  are  necessary I  141 

same  person  cannot  be  plaintiff  and  defendant.  . .     I  147 

in  action  by  agent  or  principal I  143 

by  assignees I  144 

by  or  against  an  unincorporated  association.  .     I  145 
by  or  against  corporations,  directors  or  stock- 
holders       I  147 

by  or  against  executors  or  administrators. ...     I  149 

in  action  against  corporations I  147 

in  action  by  or  against  directors  or  stockhold- 
ers       I  148 

against  officers  or  agents  of  corporations,  for 

malfeasance I  148 

in  action  against  directors  of  corporation....     I  148 

in  action  against  stockholder^'  of  corporation;     I  149 

in  action  against  public  officers I  153 

when  people  may  sue,  see  People. 

in  action  against  town  officers I  155 

in  action  by  or  against  county  officers I  l-~.j 

in  action  by  or  against  town I  156 

in  action  to  prevent  waste  of  property  of  mu- 
nicipal corporation I  157 


INDEX.  747 

PARTIES — {continued):                                                          VOT..  tage. 

in  action  to  vacate  audit  of  accounts 1  157 

trustees  of  an  express  trust I  157 

when  beneficiaries  may  sue I  158 

where  one  may  sue  or  be  sued  for  all I  140,  159 

what  pleading  in  such  case  must  show I  159 

who  may  share  in  proceeds  of  judgment  ....  I  160 

plaintiff  controls  action   I  161 

other  creditors  may  come  in  after  judgment.  I  161 

when  other  parties  cannot  come  in I  161 

united  in  interest  must  be  joined I  140,  161 

tenants  in  common  when  may  be  joined I  162,  164 

when  may  sue  severally   I  162,  164 

defendants  jointly  and  severally  liable I  161,  164 

defendant  in  action  on  written  instrument I  162,  164 

who  may  be  joined  as  defendants  in  action  for  tort.  .  .  I  163 

in  ejectment,  who  may  be  plaintiffs I  166 

who  must  be  defendants   I  168 

when  person  claiming  title  may  be  joined  as I  169 

who  may  be  plaintiffs  in  partition   I  170 

when  partition  may  be  brought  by  infant I  170 

who  should  be  joined  as  defendants  in  partition.  .  I  172 

when  creditor  may  be  defendant  in  such  action.  .1  174 

who  must  be  defendant  in  action  for  dower I  174 

in  action  to  foreclose  mortgage I  175 

in   action   to   compel   determination   of   claim   to 

real  property    I  178 

in  action  for  waste   I  179 

in  action  for  a  nuisance   I  180 

when  the  defendant  or  his  name  is  unknown I  180 

infant  plaintiffs  and  defendants    1  182 

See,  also,  Infant. 
guardian  ad  litem,  see  Infant. 

service  of  papers  on,  how  made   I  286 

when  privileged  from  arrest   I  503 

may  take  advantage  of  irregularity   I  800 

substitution,   upon   death   of,   see   Continuance 
OF  Action, 

substitution,  on  transfer  of  interest  of I  821 

rules  for  substitution  of  in  ejectment I  825 

in  partition  I  826 

where  cross  action  may  be  ordered  on  motion  to  bring 

in  new   I  829 

taking  case  from  jury  for  want  of II  329-331 

when  additional,  must,  or  may,  be  brought  in II  329-331 

who  may  be,  in  ejectment  Ill  10-12 

in   partition    Ill  33-46 

in  action  for  admeasurement  of  dower Ill  102-104 


748  iM)i:x. 

rAllTIES — {cuiitiittml)  :                                                                   VOL.  PACE. 

in  action  to  foreclose  a  iiior(f:jage Ill  127-128 

in  strict  foreclosure    Ill  155 

in  action  for  determination  of  conflicting  claims 

to  real  property   Ill  17o-178 

in  action  to  enforce  niccliaiiic's  lien   Ill  102-163 

in  action  for  \vastc    Ill  189-101 

in  action  for  nviisanco   Ill  194-197 

in  action  by  or  against  executors  and  adminis- 
trators, sec  Executors  and  Administrators. 
in    action    by    creditor    against   next   of    kin    or 

legatees Ill  373-374 

in  action  to  estjiblish  a  will Ill  387-388 

in  action  for  construction  of  a  will    Ill  395 

in  action  to  determine  validity  of  probate  of  will. Ill  395-397 

PARTITION: 

by  infant,  leave  to   sue,   in  action  of I  133 

when  people,  proper  parties  defendant I  155 

who  may  be  plaiiitiifs  in I  170 

when  may  be  brought  by  infant  I  170 

who  should  be  joined  as  defendants  in I  172 

when  creditor  may  be  joined  as I  174 

how  unknown  defendant  served  in   I  174 

guardian  ad  litem  for  infant  in I  184 

8ee,  also,  Infant. 

effect  of  filing  notice  of  pendency  of  action  in I  241 

receiver  in    I  707 

when   grantee   of    defendant    may    be    substituted    in 

action  of    I  822 

rules  for  substitution  of  parties  in I  826 

action  for,  in  what  county  to  be  brought II  127-130 

when  to  be  tried  by  jury  II  214 

III  30, 50-51 

plaintiff  not  entitled  to  costs  of  course  in   II  542,  562 

additional  allowance  in  action  for   II  019,  623 

fees  for  surveyor  in  II  662 

foi    commissioner  in    II  662 

proof  upon  default  in  action  for II  721 

nature  of  the  action   Ill  29-31 

regulated  by  the  code Ill  30 

an  equitable  action   Ill  30 

action  in  rem Ill  30 

title  may  now  be  tried   in    Ill  30,  35-37 

48-49 

history  of  legislation  on    Ill  31 

who  may  bring  the  action    Ill  33-46 

joint  tenants  or  tenants  in  common HI  33-37 


lADEX.  749 

PARTITION— (co/i/i«»cf/)  :                                                        VOL.  page. 

leiiiaindernian Ill  38-39 

infant HI  39-41 

heir,  when  devise  ohiinied  to  be  void Ill      41-42,  45 

alien   heir    Ill  41 

tenant  by  curtesy   Ill  44 

assignee  in  trust    Ill  44 

how,  made  by  parol  agreement Ill  31-33 

by  competent  adults   Ill  31 

by  infants  or  incompetents    Ill  31-32 

by  husband  and  wife Ill  32-33 

all    lands    jointly    owned    must    be    included    in    one 

action Ill  33 

courts  having  jurisdiction  of    Ill  33-34 

jurisdiction  of  courts  in,  cannot  be  attacked  collater- 
ally   Ill  33 

when  party  estopped  from  questioning  jurisdiction.  .Ill  34 

is  a  matter  of  right Ill  34 

though  not  to  be  exercised  at  iiiopportune  time.  .111  34 

where  there  is  power  of  sale,  not  matter  of  right. Ill  34-35 

nor  where  valid  trust  of  whole  property Ill  35 

nor  where  valid  agieement  not  to  partition Ill  35 

guardian  ad  litem  must  be  appointed  for  infant  plain- 
tiff   Ill  39 

general  guardian  cannot  act  as Ill  39 

effect  of  omission  to  appoint Ill  39-40 

must  give  bond Ill  40 

effect  of  judgment,  when  action  brought  by.  .111  40-41 

parties  defendant Ill  42-45 

people Ill  42 

all   persons   having   interest   in    or   lien    upon 

premises HI  43 

persons  claiming  in  hostility  to  plaintiff's  title. HI  43 

wives  of  persons  interested Ill  43 

where  actual  partition  had Ill  43-44 

notice  of  pendency  must  be  filed  in HI  46 

pleadings  in HI  4G-48 

what  must  be  stated  in  complaint HI  4G-47 

answer HI  48 

where  plaintiff's  title  rests  on   intestacy,   de- 
fendant may  i:)rove  a  lost  will  under  general 

denial Ill  387 

rents  and  profits,  when  may  be  recovered  in Ill  49-50 

when  receiver  may  be  appointed  to  collect... Ill  50 

improvements,  when  may  be  allowed  for  in HI  50 

proceedings  upon  default HI  51-55 

rights  and  interests  ascertained  by  reference. HI  51 

how  referee  to  proceed I II  52 


750  INDEX. 

PARTITION— (to»/i »i  »(■(/)  :                                                      VOL.  page. 

liens,  how  ascertained Ill  52-54 

See,  also,  Liens. 

publication  of  notice  for  liens   Ill  52-53 

powers  of  referee  in  ascertaining  liens Ill  53 

searches  to  be  annexed  to  referee's  report.  ..  .Ill  54 

where  partition  cannot  be  had Ill  54-55 

interlocutorj'  judgment,  what  to  contain Ill  55-58 

must  declare  rights  of  partner Ill  55 

must  order  sale,  if  necessary Ill  ."."> 

when  partition  ordered Ill  55,  56 

must    designate    commissioners Ill  57 

must  prescribe  terms  of  sale Ill     57,  58,  71 

investments  to  be  directed  by HI  57-58 

how  modified  or  changed HI  59 

commissioners  to  make,  appointed  by  interlocutory 

judgment Ill  57,  59 

must  take  oath   Ill  59-60 

may  be  removed,  etc Ill  60 

subject  to  direction  of  court Ill       *  60 

must'  meet  together Ill  60 

majority  may  act Ill  60,  62 

how  to  make  partition Ill  60-61 

where  there  is  a  particular  estate Ill  62 

report  of Ill  62-63 

what  to  contain Ill  62 

must  be  acknowledged Ill  62 

when  will  be  set'  aside Ill  63 

how  to  be  drawn Ill  63 

proceedings  on  filing Ill  63 

fees  of Ill  83 

sale,  when  will  be  ordered Ill      oo,  64-6l> 

See  Sale. 

costs   in   partition Ill  83-84 

additional  allowance Ill  83 

distribution  of  proceeds  of  sale Ill  84-93 

See  Sale. 
when  court  may  order  compensation  for  equality. Ill      8.5-86,94 

how  equalization  will  be  made Ill  85-86 

court  to   provide   for   dower  in   distributing  pro- 
ceeds  .Ill  89 

consent  to  receive  gross  sum  as  dower Ill  89 

inchoate  right  of  dower  may  be  released Ill  90 

how  value  of  dower  ascertained Ill  90 

how  proceeds  to  be  invested  for  tenant,  etc Ill  92 

final  judgment,  when  to  be  entered HI  93 

what  to  contain Ill  93-94 

should   direct  execution  of  conveyance Ill  94 


INDEX. 


751 


PARTITION—  ( continued )  :  VOL, 

should  settle  rights  of  all  parties Ill 

upon  whom   conclusive Ill 

of  what  conclusive Ill 

where  entered  and  recorded Ill 

how  enforced HI 

when  person  entitled  to  possession  can  secure  or- 
der for  possession HI 

appeal  from  final  or  interlocutory  judgment' Ill 

PARTNERS: 

action  against  one,  not  sued,  where  judgment 
against  others Ill 

continuance  of  business  by  one,  during  action  for  dis- 
solution   or    accounting    Ill 

cannot  make  statutory  separate  composition  with 
creditor  of  firm Ill 

PARTNERSHIP: 

release  of  property  of,  on  execution  against  one 
member II 

continuance  of  business  of,  during  action  for  dis- 
solution  or   accounting HI 

receiver  of  assets  of,  will  not  be  appointed  in  sup- 
plementary proceedings  where  one  partner  has 
made  separate  composition  with  judgment 
creditor HI 

PARTY: 

examination  of,  see  Examination  before  Trial. 
motion  for  judgment  for  non-joinder  of II 

PAYMENT: 

prevents  running  of  statute  of  limitations I 

presumption  of,  how  pleaded I 

PAYMENT  INTO  COURT: 

when  may  be  ordered I 

effect  of I 

of  money  upon  tender I 

how  made I 

when  no  tender  has  been  made I 

order  for.  required I 

costs  after I 

what  admitted  by I 

how  money  to  be  kept I 

application  for  payment  out  of  court I 

order  to  be  countersigned I 


PAGE. 

94 
94-96 
95-96 

97 


98-99 
99-100 


466 


466-467 


468 


1021-1022 


466-467 


587 


329-331 


90 
91 


754 
754 
755,  756 
758 
760 
760 
760 
761 
762 
762 
763 


752  INDEX. 

PENALTY  OR  FORFEITURE:                                          vol.  page. 

action  foi",  wht'u  barred  1  97, 99 

wheu  people  to  be  phiiutiff  in  action  fur I  152 

when  siuninoiis  to  coiilaiii  ri'tCrciici'  to  statute  in 

action  lor I  195 

what  reference  suttielent 1  196 

how   such   reference   waived I  196 

action  to  recover,  in  what  county  brou^lii II  l.;0-133 

PENDENCY  OF  ACTION.    See  Notick  of  Pknuency. 

PEOPLE: 

limitation  of  action  by I  82,  102 

what  adverse  possession  bars I  82 

claims  against,  when  barred 1  103 

to  be  plaintiff,  in  action  to  susjx'nd  officer  of  cor- 
poration        I  152 

to  compel  officer  of  corporation  to  account.  ...     1  152 

to  dissolve  corporation I  153 

to  annul  corporation I  153 

of   quo  warranto    I  154 

III  477 
for  embezzlement,  or  conversion  of  property 

of  municipal  corporation I  154 

to  enforce  penalty  of  forfeiture I  154 

to  enforce  penalty  or  forfeiture I  154 

to  enforce  escheat 1  154 

to  enforce  forfeiture  for  treason I  154 

in  state  Avrit 1  154 

upon  undertaking,  in  proceedings  for  contempt     I  154 

to  establish  charitable  trust I  155 

to  restrain  municipal  corporation I  155 

upon  official  bonds I  155 

to  recover  draft  remitted  for  taxes I  155 

when  may  be  party  defendant I  155 

in  partition  action I  155 

when  ijfoper  i)laintiffs  in  action  for  nuisance....     I  180 

no  counterclaim  allowed  in  action  by I  453 

costs  in  actions  by  or  against II  546-547 

568-569 
on  appeal  by,  security  not  required  to  perfect  ap- 
peal      II  791 

when   may    maintain   ejectment Ill  4,10 

when  proper  parties  defendant   in  partition HI  42 

may  procei'd  to  procure  judgment  restraining  nuis- 
ance   Ill  194 

195-196 
may   liave  order  in  supplementary  pioceedings  on 

judgment  against  corporation Ill  501-502 


INDEX.  753 

PERPETUATION  OF  TESTIMONY: 

See  Examination  befoiie  Trial,  and  Determination 
OF  Conflicting  Claims  to  Real  Property,  Action 

FOR. 

PERSON   HOLDING  OVER: 

action  against Ill  lOS 

PETITION: 

wlieu  motion  may  be  made  on I  260 

requisites  of I  2G0 

amendment  of I  792 

PHYSICAL  EXAMINATION,    See  Examination  before  Trial. 

PLACE: 

how  pleaded I  325 

PLACE  OF  TRIAL: 

when  motion  made  to  change I  245 

stay  of  proceedings  on  motion  to  change I  268 

in  actions  respecting  real  property,  etc II  127-130 

in  action  to  recover  penalty  or  forfeiture II  130-133 

in  action  against  public  officer II  131-133 

in  action  to  recover  distrained  chattel II  131-133 

in  quo  warranto,  attorney-general  may  designate. ...   II  131 
in  action  against  director  of  corporation  for  false 

certificate II  131-132 

in  action  not  local II  134-136 

who  are    "  parties  " II  134 

where  parties  are  non-residents II  134-136 

in  actions  of  divorce  or  separation II  135 

of  issues  of  law JI  136-137 

demand  of  change  of,  where  not'  brought  in  proper 

county II  137-140 

effect   of   demand II  137 

demand  must  have  been  made II  138-139 

140,  150-151 

change  where  not  brought  in  proper  county II  140-141 

waiver  of  right  to  have  change II  140 

when  motion  may  be  made  after  demand.  ...   II  150-151 
demand  must  specify  county  where  trial  de- 
sired     II  139 

change  where  an  impartial  trial  cannot  be  had. . .   II  141-143 

no  demand  necessary II  141.  150 

what  facts  must  appear  to  warrant  change  of.   II  141-143 

48 


•jJ:  iM>i:x. 


PAGE. 


PLACE  OF  TlUM^icouliniinl):  vor.. 

change  of,  for  convonioncc  df  witiicssos II  143-140 

no  (Ifinnnd   noccssnry TI  ^4'^.  ir>a 

motion  i:iii  Ih"  iii.-hIo  only  .•iflcr  issue  joined..    II  H.*? 
wliMt    Ijiels  will   he  considered    •  pon  such   mo- 
tion      II  144-14n 

of  action  hrou^'ht  in  local  coui-l IT  147-l.">i) 

chaufjo  of  action  brotijiht  in  local  court  to  su- 
preme court 11  147-148 

from  city  of  New  York  to  supreme  court II  148 

from  coimty  court  to  supreme  court II  148-149 

motion  for,  when  and  Avhere  made II  150-153 

by  whom  made II  153-154 

stay  of  proceedin.cs  to  make  motion  to  change.  ...   II  154-156 

revocation  of  stay II  155-156 

affidavit  to  secure  change,  by  whom  made II  156 

what  to  contain II  156-157 

for  convenience  of  witnesses,  AA-hat  to  contain 

and  form  of II  157-161 

to  change  to  proper  county,  what  to  contain.  .  II  161-162 

to  secure  impartial  trial  what  to  contain II  162 

motion  to  change,  grounds  of  opposition  to II  163-168 

when  motion  to  change  denied  for  delay II  165 

order  for  change  what  to  contain II  168-169 

in  what  county  entered II  168 

when  takes  effect II  168-169 

may  be  appealed  from II  169 

terms    on    granting    or    denying    motion    to 

change II  169-171 

effect  of   change   of II  171 

effect  of  removal  to  another  county II  172 

of  action  of  ejectment Ill  3 

of  action  for  admoasiu'ement  of  dower Ill  102 

of  action  for  foreclosxn*e  of  mortgage Ill  127 

of  action  for  foreclosure  of  lien  on  chattel Ill  158 

of  action  of  waste Ill  188 

of  action   of  nuisance Ill  197 

of  action  of  replevin Ill  214 

of  action  against  usurper  of  office  or  franchise.  .  .  .Ill  488 

PLAINTIFF: 

who  may  ho  joined  as   I  139 

one  who  will  not  join  as,  to  be  made  defendant I  140 

real  party  in  interest  must   sue.  as I  140 

who  may  ho  joined  as    I  141 

agent   must  sue  in  name  of  principal I  143 

when  agent  may  sue  in  his  own  name I  143 

assignee,  when  proper  plaintiff    I  144 


INDEX. 


755 


PLAINTIFF—  ( con  tinned )  :  VOL. 

joint   stock   association,   president   or  treasurer   may 

sue   as    I 

when  stockholders  of  corporation  may  join  as I 

when  executor  or  administrator  may  be I 

when  people  may  be  plaintiff,  see  People. 
See,  also,,  Trustee  of  Express  Trust. 

Avhen  beneficiaries  may  sue    I 

where  one  may  sue  or  bo  sued  for  all I 

See,  also,  Parties. 

persons  jointly  interested,  must  be  joined  as I 

in  ejectment,  who  may  be  I 

who  may  be,  in  partition    I 

in  foreclosure,  who  may  be   I 

in  action  to  compel  determination  of  claim  to  real 

property   I 

in   action   for  waste    I 

in   action   for   nuisance    I 

when  private  person  may  be,  in  such  action I 

when  may  sue  to  collect  attached  property I 

when  may  join  with  sheriff  in  suit  brought  to  collect 

attached  property    I 

judgment  for,  when  part  of  claim  admitted  by  answer     I 
See,  also,  Satisfaction. 

when  may  make  offer  of  compromise   I 

death  of.     See  Continuance  of  Action. 

discovery  by.     See  Discovery  of  Books  and  Papers. 

when  compelled  to  elect    II 

opening  of   trial   by    II 

when  may  consent  to  nonsuit    II 

need  not  be  called  on  nonsuit II 

need  not  be  called  when  verdict  to  be  delivered II 

when  entitled  to  costs  of  course   II 

See  Costs. 

on  what  title,   may  maintain   ejectment Ill 

who   may   be,   in  ejectment    Ill 

who  may  be,  in  partition    Ill 

in  action  for  admeasurement  of  dower Ill 

in  action  for  foreclosure  of  mortgage   Ill 

in  action  for  determination  of  conflicting  claims 

to    real    property    Ill 

in  action  of  waste    Ill 

in  action  of  nuisance Ill 

in  action  against  trustee  or  other  officer  of  cor- 
poration    Ill 

in  action  to  dissolve  corporation    Ill 

in  action  hy  executors  or  administrators Ill 

in  action  to  establish  a  will   Ill 


146 
147 
150 


140,  157 
159 

161 
166 
172 
175 

178 
179 
180 
180 
662 

663 

764 

772 


304 
306 

331-332 
332 
381 

541-555 

5-8 

10 

33-46 

102 

127-128 

175 
189-190 
194-196 

316,  318 

324-326 

353 

387 


756  INDEX. 

PLAINTIFF —  ( con  tinned )  :  vol.  page. 

in  action  to  determine  validity  of  probate  of  will  III        395-397 

in  judgment  creditor's  action    Ill        415-41G 

in  action  against  usurper  of  officer I  153 

in  477 
PLEADING: 

presumption  of  payment,  how  pleaded I  91 

motion  to  correct,  wlien  made    I  245 

when  and  where  filed   I  290 

forms   of,   abolished    I  318 

facts  only  to  be  stated  I  320 

how  facts  to  be  stated  I      320,  323 

hypothetical  pleading,  when  held  good I  321 

legal  conclusion  not  to  be  stated  in I  321 

facts  which  must  be  proved,  must  be  pleaded I  322 

facts   necessary   to    show    right   to    relief,    should   be 

stated   in   I  322 

what  facts  need  not  be  pleaded   I  322 

what  certainty  required  in  stating  facts  in I  324 

time,  how  stated  in  I  324 

place,  how  stated  in   I  325 

facts  should  be  positively  stated  in   I  325 

when  may  be  stated  on  information  and  belief  in ...  .  I  326 
construction  of  allegation  upon  information  and  be- 
lief in I  326 

how  to  allege  private  statute  in    I  326 

account   I      326,  351 

judgment   I  327 

conditions  precedent I  328 

instrument  for  payment  of  money  only I  329 

slander  and  libel    I  330 

how  to  be  written  and  endorsed   I  331 

separate  statement  of  cause  of  action  or  defense  in.  .  I  331 

form   of   such   statement    I  331 

remedy  for  failure  to  state  separately I  332 

each  count  to  be  complete  in  itself  I  332 

same  cause  of  action  or  defense  not  to  be  pleaded  in 

different  counts 1  332 

subscription  of I  333 

service    of    I  333 

service  of  answer  on  co-defendant   I  334 

issue  determined  by  copy  of,  served   I  334 

verification  of,  see  Verification. 

allegations  of,  to  be  liberally  construed I  346 

rule  requiring  liberal  construction  of,  how  applied..  I  346 

what  will  be  assumed  in  construction  of    I  347 

construction   of,  upon   demurrer    I  347 


INDEX.  757 

PLEADING — {continued)  :                                                        VOL.           PAGE. 
construction   of,   more   liberal    on   trial   than   on   de- 
murrer      I  347 

clerical  errors,  when  disregarded  in    I  348 

when  construed  most  strongly  against  pleader I  348 

where  prayer  for  relief  may  be  consulted  in  construc- 
tion  of I  349 

what  deemed  admitted  in  construction  of   I  349 

facts  admitted  by,  cannot  be  contradicted   I  350 

amendments  of,  see  Amendments. 
supplemental,  see  Supplemental  Pleading. 
application  for  judgment  on  account  of  frivolousness 

of  I  379 

on  what  pleading  such  judgment  may  be  granted.  I  379 

when  granted   I  380 

when  not  granted    I  380 

Avhat  relief  must  be  asked  in  notice  of  motion  for.  I  380 
when  leave  to  amend  will  be  granted  on  motion 

for   I  381 

order  granting,  appealable I  381 

sham  pleading,  see  Answer. 
irrelevant,   redundant  or   scandalous  matter  may  be 

stricken   out   I  385 

motion  for,  when  to  be  made   I  387 

waiver   of  right I  387 

what  is  irrelevant  matter   in    I  385 

what  is   redundancy  in    I  386 

granting  of  motion  to  strike  out,  discretionary I  386 

what  is  scandalous  matter  in    I  386 

will  not  be  permitted  to  remain  on  record I  386 

attorney  Avill  be  charged  with  costs  on  motion  to 

expunge I  386 

when  made  definite  and  certain  I  388 

when  motion  for  will  be  denied I  389 

when  discovery  granted  to  enable  party  to  frame.  .  .  I  838 
See,  also.  Discovery  of  Books  and  Papers 
—  Complaint  —  Answer  —  Counter- 
claim —  Eeply  —  Demurrer. 

examination  of  party  may  be  had  to  enable  to  frame.  II  6 

when  new  notice  of  trial  required  after  amendment  of.  II        234-235 

by  whom  furnished  on  trial   II      233,  270 

motion  for  judgment  on,  at  trial    II  302 

See  Trial  by  Jury. 

rule  of  construction  of,  on  motion  for  judgment  on..  II  302 

should  not  be  read  in  opening  case II  307 

how  far  evidence    II  326 

referee  to  hear  and  determine  may  allow  amendment 

of II      426,  427 


758  INDEX. 

PLEADING! — (conliniKd)  :  vol.  page. 
amendment  of  in  eonnly  coiut,  on  appeal   from  jus- 
tice's court II  960 

in  ejectment,  see  Ejectment. 

in  partition,  see  Pahtitiok. 

in  action  for  dower,  see  Admeasurement  of 

DOWEK. 

in    foreclosure    suit,    see    Foreclosure    of 
Mortgage. 

in  strict  foreclosure,  see  Strict  Fore- 
closure. 
in  action  to  annual  a  marriage,  for  a  divorce 
or  separation,  see  Matrimonial  Actions. 
in   action   to  dissolve  corporation,  see  Cor- 
poration. 
in  action  by  or  against  executor  or  adminis- 
trator, see  Executors  and  Administra- 
tors. 
in  action  by  creditor  of  decedent  against  next 
(jf     kin,     legatee,     heir,     or     devisee,     see 
Decedent. 

in    action    to   establish    Avill Ill  388 

in  action  for  construction  of  a  will Ill  395 

in   judgment  creditor's   action    Ill        419-421 

in  action  against  joint  stock  association.  .  .  .Ill  440 

POOR  PERSON:  ■ " 

leave   to   sue   as   I  134 

application,   how   made    I  134 

when  application  may  be  granted   I  135 

who  may  apply I  135 

person  admitted  to  sue  as,  need  not  pay  fees I  136 

when  order  granting  leave  may  be  annulled I  136 

when  party  may  defend  as  poor  person I  137 

leave  to  sue  as,  does  not  authorize  appeal  by I  137 

when  costs  granted  to,  must  be  paid  to  attorney I  138 

POSTPONEMENT  OF  SALE.    See  Sale. 

POSTPONEMENT  OF  TRIAL: 

when  to  be  applied  for    II  250 

usual   grounds    for    II  250-252 

absence  of  witness    II  250-252 

sickness,  when  ground   for    II  252 

absence  of  counsel,  when  ground  for   II  252 

application  for,  how  made    II  252-253 

affidavit  for,  what   to  contain    II  252-254 

no  formal  notice  of  application  for,  required II  254 

opposing  papers,  what  to  contain    II  254 

terms  of II  254-255 


INDEX.  759 

POTPOXEMENT   OF   TRIAT.. —  {continued):                       vol.  page. 
that  action  shall  not  abate,  or  be  referred,  may  be 

imposed  as II  254 

costs  imposed  as  terms,  how  taxed   II  255 

when  to  be  paid    II  255 

course  to  be  pursued  where  motion  for,  denied II  255-257 

351,  460-461 
must  be  asked,  to  sustain  a  motion  for  new  trial  on 

groimd  of  surprise II  486,  487 

POUNDAGE.    Hee  Sheriff. 

PRACTICE: 

where  rules  of  found   I  1 

where  no  statute  or  rule    I  2 

PREFERRED  CAUSE: 

what  is II  239-249 

III  302 

how  preference  obtained    II  244-246 

waiver   of II  246-247 

lost  by  laches   II  247-248 

"  short  causes  "    II  248,  259 

in  court  of  appeals II  865-866 

PREPARATION  FOR  TRIAL: 

how  to   prepare  for  trial    II  231-233 

PRINTER- 

affidavit  of  publication  by,  presumptive  evidence....  II  101-102 

PRIVILEGE  FROM  ARREST,    See  Arrest  and  Bail. 

PROBATE : 

action  to  determine  validity  of,  see  Will. 

PROCEEDINGS : 

when  according  to  practice  of  chancery I  2 

to  punish  attorney,  a  summary  proceeding   I  30 

procedure  upon I  30 

upon  death  or  disability  of  attorney   I  37 

stay  of,  by  whom  granted   I  206 

stay  of,  for  non-payment  of  costs  of  motion I  281 

when  void   for   irregularity    I  800 

how  irregularity  in,  corrected   I  801 

of  municipal   corporation,  how  proved    II  114-115 

of  court  of  United  States,  how  proved II  116-117 

PROCESS: 

cannot  be  issued  on  Sunday 1  4 

made  returnable  on  Sunday,  not  void    I  5 

sheriff  cannot  execute  in  his  own  favor I  23 

service,  and  return  of  by  sheriff I  20 

only  to  be  amended  by  the  court    I  794 


760  INDEX. 

PROHIBITION:                                                                          VOL.  page. 

final  Older  in.  reviewable  by  appeal   II  774 

PROOF: 

burden   of    II        309-310 

order  of,  discretionary II        310-311 

partial,  how  far  admission  of   discretionarj' it  311 

of  papers,  see  Papers. 

PROOF  OF  SERVICE: 

of  summons.     See  Summons. 
of  process,  or  papers  other  than  summons I  289 

PROTEST : 

notary's  certificate  of  notice,  when   presumptive  evi- 
dence         I  336 

See  Notary  Public. 

PROVISIONAL  REMEDIES: 

court  acquires  jurisdiction  from  time  of  granting.  ...      I  189 

when  party  may  be  required  to  elect  between I  752 

motion  for  to  be  decided  within  twenty  days I  752 

right  of  defendant  to,  on  counterclaim    I  753 

See  Arrest  and  Bail  —  Attachment  —  In- 
junction —  Receiver. 
cannot  be  granted  on  submission  of  controversy  with- 
out action II  770 

PUBLICATION: 

of  summons,  how  made   I  227 

of  summons,  when  complete   I  227 

of  notice,  time  of,  how  computed   I  292 

iu  what  papers  notice  to  be  published I  317 

of  notice  for  creditors  to  exhibit  demands,  in  action 

for   their   benefit    I  317 

of  notice,  where  no  newspaper  in  county I  317 

PUBLIC  IMPROVEMENT: 

enforcement  of  liens  imder  a  contract  for Ill  171 

PUBLIC  OFFICER: 

certificate  of,  see  Certificate. 
See,  also,  Record. 
action   against,   where   brought    II        131-133 

PURCHASER: 

at  judicial  sale,  see  Sale. 
at  execution  sale  may  maintain  waste Ill  190 


INDEX.  761 

Q. 

QUESTION  OF  FACT:                                                             vol.  page. 

when  arises  in  case    II  357 

when  specific,  may  be  submitted  on  trial    II  359-361 

See  Trial  by  Jury. 

QUO  WARRANTO: 

action  against  usurper  of  office  substitute  for  writ  of. Ill  473 

See  Usurper  of  Office. 


R. 

REAL  ESTATE: 

limitation  of  action  by  people  for   I  82 

limitation  of  action  by  other  than  people  for I  83 

parties  in  action  to  compel  determination  of  claim  to.      I  178 

when  notice  of  pendency  filed  in  action  concerning. .  .      I  237 

undertaking  in  injunction  relating  to I  598 

in  what  county  actions  for,  to  be  tried II        127-130 

verdict  in  actions  for  determination  of  claims  to. .  .  .   II  378 

costs  in  action  for  where  title  to  arises II       541-545, 

559 
how  far  judgment  lien  on,  see  Judgment. 

contents  of  execution  for,  delivery  of II  987 

no  levy  on,  on  execution II  1020 

sale  of,  on  execution  II    1035-1062 

See  Execution. 

title   to,   may   be   tried   in   partition Ill    30,  35-37, 

48-49 

how  described  in  notice  of  sale   Ill  67-68 

sale  of,  see  Sale, 

action  to  determine  conflicting  claims  to,  see  De- 
termination OF  Conflicting  Claims  to  Reial 
Property. 
what  interest  of  judgment  debtor  in,  passes  to  receiver 

in   supplementary   preceedings Ill  594 

See,  also,  Supplementary  Proceedings. 

RE-ARGUMENT  : 

of  motion   I  273 

See  Appeal. 

RECEIVER: 

leave  to  sue  in  action  by  or  against I  130 

counterclaim  in  action  by   I  451 

purpose  of  appointment  of   I  697 

duty  of    I  697 

who  may  be  appointed   I  698 

who  should  not  be  appointed   I  698 


762 


INDEX. 


RECEIVER— (   coiitiniird)  :  vol. 

])ractice  where  appointed   in  more  than  one  action..      I 

rights  of   second   receiver,  when   more  than   one 

wiiat   mu.st    he  >lio\vu   upon    application    for   appoint- 
ment of 

application  must  be  upon  notice   

by   whom   appointed    

order  appointing,  how  far  appealable    

reference  to  appoint    

court  may  make  order  of  reference 

not  usually  appointed  until  after  summons  served.  .  . 
consent,  waiver  of  irregularities  in  appointment.  .  .  . 

when  appointed  before  final  judgment   

courts  still  have  same  power  to  appoint  as  before  code. 

not  appointed  where  remedy  at  law  adequate 

what  must  appear  to  authorize  appointment  of 

in  action  to  foreclose  mechanic's  lien 

in  action  between  partners    

in  judgment  creditor's  action    

II 

in  what  cases  appointed    

in  action  for  partition 


II 


in  action  to  foreclose  mortgage 


II 


in  action  on  fraud  of  executor  or  administrator 

in  action  against  trustee    

in  action  by  or  against  incompetent  person 

when  appointed  by  or  after  final  judgment 

security  to  be  given  by   

security  by  trust  company   

court  may  require  new  bond 

what  passes   to   receiver    

when  title  to  vests   

powers    of    

when  may  employ  counsel   

may  apply  to  court  for  instructions 

not  to  be  sued  without  leave  of  court 

must  follow  directions  of  court    

duty  of,  when  sued  without  leave 

how  far  liable  for  costs 

when  liability  ceases    

when  will  be  charged  with  interest   

compensation   of    

how  discharged  or  lemoved    

court  may  remove 

when   may   be   substituted    as    defendant    in    action 
against  corporation I 


PAGE. 

699 
700 

710 
710 
701 
702 
702 
702 
702 
702 
703 
703 
704 
704 
705 
705 
705 
426-427 
706 
707 
108 
707 
132 
709 
709 
709 
710 
713 
713 
714 
714 
715 
717 
718 
718 
718 
721 
722 
722 
723 
723 
724 
725 
726 

824 


INDEX.  763 

EECEIVER — (    continued):                                                         vol.  page. 

■when  bound  by  judgment  without  substitution I  824 

See,  also,  Provisional  Remedies. 

costs  in  action  by  or  against  II      571,  574 

commissions   of II        676-677 

when,  may  sue  in  ejectment   Ill  10 

when  appointed  in  ejectment   Ill  18 

in    partition    Ill  50 

may  maintain  action  for  admeasurement  of  dower.  .  .Ill  102 

may  be  appointed  in  such  action   Ill  108 

in  action  for  foreclosure  of  mortgage Ill  132 

whether,  can  be  appointed  in  replevin    Ill  218 

in  action  of  divorce   Ill  270 

in  action  to  dissolve  a  corporation Ill        330-334 

in  action  to  annul  a  corporation    Ill  344 

;S'ee,  also,  Eeceiveb  of  Cokporation. 

in  action  to  establish  a  will    Ill        388-389 

cannot  be  appointed  in  action  to  determine  the  valid- 
ity of  probate  of  a  will    Ill  399 

in  supplementary  proceedings    Ill        584-604 

See  Supplementary  Proceedings. 

RECEIVER  OF  CORPORATION: 

can  only  be  appointed  by  court I  727 

in  what  cases  appointed 1  727 

in   proceedings   for   voluntai-y   dissolution    of   cor- 
poration       I  729 

when  title  vests  in  such  case I  730 

in  proceedings  against  banking  corporation I  730 

cases  in  which  court  cannot  appoint I  732 

order  upon,  to  designate  places  of  deposit I  733 

in  action  against  corporations  annulled  by  law.  ...     I  734 

application  for  appointment,  where  made....     I  734 

notice  of  application,  how  given,  and  to  whom     I  735 

when  notice  must  be  given  to  attorney  general     I  735 

who  may  be  appointed I  736 

who  cannot  be  appointed I  737 

security  to  be  given  by I  737 

powers  of I  738 

what  property  vests  in I  739 

to  make  and  file  inventory I  740 

to  publish  notice  to  creditors I  740 

auties  of,  in  proceedings  in  equity  against  corpora- 
tion       I  741 

duties  of,  on  voluntary  dissolution  of  corporation.     I  741 

of  insurance  company,  to  make  assessment I  743 

to  present  account  to  the  court I  743 

powers  of,  of  insolvent  banking  corporation I  748 


764  INDEX. 

RECEIVER  OF  CORPORRATION—( con/ i/iwecZ)  :              vol.  page. 

court  may  remove I  747 

when  attorney-general  may  apply  for  removal  of.     I  747 

where  motion  to  be  made I  747 

compensation  of I  749 

in  action  to  dissolve  corporation Ill  330-334 

in  action  to  annul  a  corporation Ill  344 

RECORD: 

Avhen  need  not  be  produced  upon  subpoena II  86 

Avheu  may  be  removed  for  trial II  S6 

of  paper  in  public  office,  when  may  be  read  in  evi- 
dence     II  109 

of  various  public  officers,  evidence II  109-112 

of  conveyance,  when  evidence II  112-113 

See  Conveyance. 

of  court  of  United  States,  when  evidence II  116-117 

in  a  department  of  United  States,  Low  proved. ...  II  117-118 
of  observations  of  the  weather  by  U.  S.  signal  ser- 
vice, of  what  facts  evidence II  117 

of  justice  of  peace  of  another  state,  how  proved. .  II  121-122 

of  courts  of  another  state II  119-120 

of  foreign  court,  how  proved II  122-123 

See  Vessel. 

See,  also.  Foreign  Country. 

RECORDING: 

of  notice  of  pendency  of  action I  240 

REDEMPTION: 

of  real  property  after  sale  on  execution II  1044-1057 

by  judgment  debtor II  1044-1047 

by  creditor II  1047-1057 

See  Execution, 

one  who  has  made,  may  maintain  waste Ill  189 

REFEREE: 

when  case  may  be  sent  to,  upon  default II  266 

to  make  computation  on  trial  of  issue  of  law II  274 

when  cannot  be  named  in  stipulation  for  reference  II  403-404 

who  may  be II  416-417 

when  must  be  selected  by  the  court II  417 

who  should  be  appointed II  417-418 

more  than  one  may  be  appointed II  418 

what  evidence  of  autliority  advisable  for II  418-419 

powers  and   duties  of II  421 

where  hearing  must  be  had  before II  422 

must  be  sworn II  422-423 

must  act  personally II  42i 

witness  may  be  subpoenaed  before II  424 


INDEX.  765 

REFEREE — { continued) -.                                                           VOl..  PAGE. 

may  administer  oath II  424 

if  more  than  one,  either  may  administer  oath II  424 

may  allow  adjournments II  424-425 

how  to  act  when  more  than  one II  425 

cannot  be  sworn  as  witness II  425 

must  keep  free  from  outside  influence,  etc II  425-426 

powers  and  duties  of  referee  to  try  issues II  426-428 

when  exercises  the  same  power  as  court II  426 

may  allow  amendments  of  pleadings II  426,427 

to  try  issues  may  punish  for  contempt II  426,  427 

when  functions   of,   end II  427-428 

to  take  account,  powers  of II  428-429 

may  reject  evidence II  428 

cannot  punish  for  contempt,  except  refusal  to  at- 
tend, etc II  429 

compensation    of   II  429-431 

statutory  rate II  429 

to  what  referees  statute  applies ' II  430 

attorneys  of  parties  may  stipulate  as  to  fees  of . . .  II  430 

requisites  of  stipulation II  430 

what  may  be  charged  for II  430 

lien  of,  upon  report  for  fees II  431 

other  remedies  of,  for  collection  of  fees II  431 

hearing  before,  how  brought  on,  and  by  whom. ...  II  432-433 

time  and  place  for  hearing  before,  how  fixed....   II  432 

notice  of  hearing  before II  433-436 

summons  for  hearing II  433 

form  of  summons II  434 

underwriting  upon II  4.34 

service  of II  434-435 

notice  of  hearing  sufficient  without  summons.   II  4.35-436 

hearing  before II  436-437 

See  Refeeence. 

report  of II  438-442 

when  to  be  made ^ II  438 

effect  of  failure  to  report  within  sixty  days II  438 

how  time  to  report  extended II  439 

when  sixty  days  begins  to  run '. II  439 

what  notice  terminates  reference II  440 

when  report  can  be  said  to  be  "  filed  "  or  "  deliv- 
ered "    II  440 

report  of,  on  trial  of  issues,  to  be  in  same  form  as 

decision  of  court  in  like  case II  440-441 

report  where  more  than  one  referee II  441 

on  interlocutory  reference,  what  to  contain II  442 

when  testimony  of  witnesses  to  be  filed  with  re- 
port    II  442-443 


766  INDEX. 

REFEREE —  (cont hiited )  :                                                            vol.  page. 

exceptions  to  report  of 11  442 

when  they  must  be  filed 11  442 

in  wliat  references  they  need  not  be  filed.  ...   11  442-443 

who   may   tile   them 11  443 

what  questions  raised  by II  444 

confirmation  of  report  of 11  444-447 

when  report  confirmed  without  order II  444-445 

when  motion  to  confirm  report  of,  may  be  noticed  II  445 

hearing  upon  motion  for  confirmation  of  report  of  II  445 

papers  on  hearing 11  445-446 

Mhcn  attidavits  maj'  be  read  on II  446 

who  may  be  heard  on  exceptions  to  report  of .  . . .   II  446 

power  of  court  upon  argument  of  exceptions II  446-447 

effect  of  overruling  exceptions II  447 

when  report  of,  need  not  be  sent  back  on  allowing 

exceptions 11  447 

when  motion  for  final  judgment  may  be  made  on 

report  of II  447 

effect  of  failure  to  file  exceptions  to II  447 

report  of,  only  reviewed  by  appeal II  448 

when  report  will  be  sent  back  to  referee II  449 

for  what  reason  report  will  be  set  aside II  448-449 

450-452 

how  irregularities  of  referee  waived II  449 

how  far  under  control  of  court II  450 

when  will  be  removed II  4.50 

appointment  of  new  referee  after  reversal II  450-451 

settlement  of  case  where  more  than  one / .  II  463 

where  referee  has  died II  464 

motion  for  new  trial,  after  trial  Ity II  472-473 

Sec  New  Trial. 

fees  of,  when  allowed  as  disbursements II  6.36 

fees  of II  659-661 

judgment  after  trial  by II  735-736 

Sec  Judgment. 

to  ascertain  rights  and  interests  in  partition Ill  51 

may  decide  upon  validity  of  liens  in  partition. ..  .Ill  52 

must  file  searches  with  report  Ill  54, 131 

to  sell,  see  Sale. 

to  admeasure  dower,  see  Admeasurement  of 
Dower. 

on  default  in  action  of  foreclosure Ill  130-131 

report  of,  after  sale  in  foreclosure Ill  143 

to  ascertain  rights  to  surplus  moneys Ill  147.  149 

proceedings  on  report  of,  to  hear  and  determine 

action  to  annul  a  marriage Ill  201-262 

in  action  of  divorce Ill  271 


INDEX.  767 

REFEREE — (('OHtinued)  -.                                                             VOL.  PAGE. 

to  report  ou  amount  of  alimony Ill  279-280 

in  action  for  separation Ill  292 

to  hear  proof  of  claim  against  corporation Ill  335 

to  hear  disputed  claim  against  decedent's  estate.  .Ill  302,363 

report  of Ill  366 

exceptions  to  report  of Ill  366 

367-368 

appointment  of  new HI  366-367 

368 

in  supplementary  proceedings Ill  554 

SeCi.  also,  Supplementary  Proceedings. 

REFERENCE: 

attorney  may  consent  to I  39 

on    contested   motion I  269, 270 

action  does  not  abate,  after  report  made I  830 

report'  on.  void,  if  made  after  death  of  party I  831 

to  settle  issues,  proceedings  ou II  230 

vrhat  actions  may  be  referred  by  consent II  402 

how  consent  to,  may  be  made II  402,  403 

upon  consent  to  refer  to  person  named,  court  can- 
not refer  to  anotlaer II  403 

order  for,  to  be  made  by  court II  403,  418 

if  referee  refuses  to  serve  or  new  trial  ordered, 

court  must  appoint  another II  403,  404 

450-451 

what  reference  may  be  ordered  in  equity  case II  403 

need  not  be  ordered,   of  course,  upon  consent  in 

certain  actions II  403 

in  what  actions  court  must  designate  referee II  403-404 

of  other  issues  after  report  upon  specific  question 

of  fact II  410 

compulsory,  when  may  be  ordered II  404 

history  of  statutes  governing II  404-405 

in  an  action  by  or  against  an  executor  or  adminis- 
trator     II  405 

when  long  account  involved II  405-406 

must  be  object  of  action II  405 

must  arise  as  to  matters  set  out  in  complaint.  II  405 

where  long  account  involved  in  counterclaim.   II  405-406 

where  several  issues  or  causes  of  action II  406 

what  constitutes  a  long  account II  406-408 

how   that   fact   shown II  406 

power  to  order,  limited  to  action  on  contract II  408 

cannot  be  ordered  in  action  for  tort II  408 

when  ordered  in  mandamus II  408-409 


768 


INDEX. 


'REFERENCE— (continued):                                                     VOL.  PAGE, 
not  ordered  where  difficult  questious  of  law   iu- 

volved II  409 

liow  sbowu  that  difficult  questions  of  law  in- 
volved     II  409 

order  of,  discretionary  in  all  cases  where  referable  II  409 

in  actions  triable  bj'  the  court II  409 

only  granted  in  such  actions  where  long  account 

involved II  410 

after  interlocutory  or  final  judgment II  410 

what  accounts  may  be  referred II  411 

upon  application  for  judgment II  411 

no,  upon  defendant's  default  in  divorce  case II  411-412 

to  make  incidental  inquiries II  412-413 

when  may  be  ordered  in  special  proceedings II  412-413 

upon  motion,  not  usually  ordered II  413 

not  ordered  of  question  of  law  arising  on  motion.  .   II  413 
what    report   may    be    directed    under    incidental 

reference II  413 

motion  for,  where  made II  414 

when  may  be  made  at  trial  term II  414 

not  made  until  cause  at  issue II  414 

affidavit  upon II  414 

by  whom  made II  415 

what  should  appear  by II  415-416 

opposition  to  motion II  416 

who  may  be  referee,  see  Referee. 

order  can  only  be  made  by  the  court II  418 

when  authority  for  referee  to  proceed II  518-419 

order  appealable  to  appellate  division II  419 

can  only  be  reviewed  by  appeal  directly  from  it.  .  II  419-420 

811-812 

effect  of  failure  to  appeal II  421 

for  what  cause  vacated II  420 

effect  of II  420-421 

how  brought  on,  see  Referee. 
hearing,  etc.,  on  trial  of  issues,  same  as  on  trial  by 

court II  436 

proceeding  on  hearing  of  interlocutory II  437 

report,  see  Referee. 

what  notice  terminates II  440 

on    application    for    judgment    by    default,    see 
Judgment. 

judgment  after II  735-736 

<Sfee  Judgment. 

in  partition HI  5I-55 

to  ascertain  rights  of  parties,  after  sale  In  action 

for  admeasurement  of  dower Ill  118 


INDEX.  7G9 

REFERENCE — {coniinucd)  :  VOL.  page. 

on  default  iu  foreclosure Ill        130-131 

to  ascertain  rights  to  surplus  moneys Ill        147-152 

in  action  to  annul  a  marriage Ill       260,  261 

in  action  of  divorce Ill       271,  724 

in  action  for  separation Ill        292-293 

on  application  for  alimony  and  counsel  fees Ill  303 

no,  of  course  in  action  lo  dissolve  a  corporation.  .Ill  327 

to  ascertain  claims  against  corporation  in  action  to 

dissolve   Ill  335 

of  claims  against  estate  of  decedent Ill       300-369 

See  Executors  and  Administrators. 
in  supplementary  proceedings,  see  Supplement- 
ary Proceedings. 
RELIGIOUS  CORPORATION: 

when  one  member  of,  may  sue  for  all I  160 

not  governed  by  code  provisions  as  to  actions 
against  trustees,  etc.,  of,  or  as  to  actions  to  dis- 
solve   Ill  318 

339-340 
REMAINDERMAN: 

where  may  bring  partition Ill  38-39 

when  may  maintain  action  of  waste Ill        189-190 

REMITTITUR: 

from  court  of  appeals,  see  Court  of  Appeals. 
RENEWAL: 

of  contested  motion I  271 

of  ex  parte  motions  and  applications   I  272 

RENT  IN  ARREAR: 

when  ejectment   brought    for Ill  25-28 

/S'ee  Ejectment. 

RENTS  AND  PROFITS: 

may  be  recovered  in  ejectment Ill  8,  9 

when  may  be  recovered  in  partition Ill  49-50 

action  by  joint  tenant,  or  tenant  in  common,  to  re- 
cover his  share  of Ill  198-199 

receiver  in  supplementary  proceedings  entitled  to.  .  .  .Ill  594 
REPLEVIN: 

when  jurisdiction  acquired  in  action  of I  190 

does  not  abate  by  deatli I  812 

discontinuance   in   action   of II  182-183 

action  for,  to  be  tried  by  jury II  212 

notice  of  abandonment  of  claim  in II  237 

III  218 
notice  by  defendant  of  demand  of  judgment  for  re- 
turn, in II  237 

III  218 


770  INDEX. 

REPLEVIN — (continued)  :  VOL. 

verdic-t.  report  or  decisiou  iu  action  of II 

III 

valiU'  at  time  of  trial   II 

111 
when  plaiutift'  entitled  to  costs,  of  course,  in  action 

of 11 

judgment  roll  in 11 

how  damages  ascertained  on  default,  in  action  tor  II 

judgment  on  general  verdict  in II 

judgment  iu,  how  enforced  by  execution II 

history  and  nature  of Ill 

for  what  taking  or  detention  may  be  brought.  ..  .Ill 

for  what  cannot  be  maintained Ill 

plaintiff  must  liave  present  right  to  possession  to 

maintain Ill 

plaintiff  may  maintain,  where  title  transferred  to 

him  after  wrongful  faking,  etc Ill 

when    tenant    in    common    may    maintain   agaiust 

co-tenant Ill 

defendant  must  have,  or  liavc  had,  wrongful  ]ios- 

session Ill 

when  demand  and  refusal  necessary Ill 

fur  what  property  may  be  brought Ill 

mil'  where  property  has  been  taken  by  pro- 
cess   Ill 

209. 

where  property  severed   from   freehold Ill 

when  second  action  of,  cannot  be  maintained  for 

same  chattel Ill 

when    there    is   judgment    on    merits    barring 

action  for  damages Ill 

right  to  bring,  when  Avaived Ill 

as  affected  by  order  of  arrest' Ill 

proceedings   in   action   of Ill 

how  commenced Ill 

taking  property  not  essential  to  maintenance 

of Ill 

when  jurisdiction  acquired  by  seizure  of  proj)- 

erty Ill 

in  what  county  action  to  be  brought' Ill 

place  of  trial  of Ill 

order  of  arrest  in Ill 


PAGE. 

370 

218-219 
379 
218 

545-546 
G83 

720-721 
734 
963 

203-205 
205 

205-206 

206-207 

208 
208 

209 
209-210 

216 
210-211 

207-208 
211.  2:u 
211-212 

212 

212 
212-213 

213 
213-221 

213 

214, 222 

214 
214 
214 
213 
214-215 


INDEX.  771 

KErLEVlN — ■(continued)  :                                                        VOL.  page. 

complaint  in Ill  215-21U 

what  causes  of  action  may  be  joined  in Ill  215 

form  of Ill  215 

owuersliip,    how   alleged   in Ill  215 

what  is  sufficient  allegation  of  wrongful  tak- 
ing   HI  215 

of  wrongful  detention Ill  215-216 

allegations    when    damages    for    depreciation 

claimed Ill  216 

answer  in Ill  217 

defense  that  third  person  was  entitled  to  chat- 
tel   Ill  217 

when  provable  under  general  denial Ill  217 

defense,    that    chattel    was    distrained    doing 

damage Ill  217 

must  claim  damages  for  detention,  when  de- 
fendant desires  to  recover  such Ill  217 

triable  by  jury Ill  218 

whether  receiver  can  be  appointed  in    Ill  218 

verdict,   report   or   decision   in II  379 

III  218-219 

judgment   in   Ill  219-221 

what   to    contain    Ill  219 

may  be   docketed   Ill  219 

docket   creates   lien    Ill  219 

form    of   Ill  219 

adjudicates  rights  of  parties  at  time  of  rendition  III  219-220 
when  must  be  in  alternative  for  return  of  chattel 

or  value Ill  219-221 

when  may  be  entered Ill  220 

where  there  are  several  defendants   Ill  221 

where  there  are   several   chattels    Ill  221-222 

when  damages  for  depreciation  during  detention 

may  be  awarded  by    Ill  216,  237 

interest  on  damages  awarded  for  detention Ill  221 

costs II  545 

III  222 

taking  the  property Ill  222 

at  what  stage  of  the  action  it  may  be  taken.  .  .  .Ill  222-223 
cannot  be  taken,  where  complaint  asks  damages 

instead  of  possession   of  the  property Ill  223 

affidavit  and   requisition    Ill  223-227 

must  be  delivered  by  plaintiff  to  sheriff ...  .Ill  223 

by  Avhom  affidavit  may  be  made   HI  223 

what  must  be  stated  in  affidavit  Ill  223-227 

specification   of   chattels    Ill  224-225 

plaintiff's  owncr.->lnp,  etc Ill  225-226 


T<1:  INDEX. 

REPLEVIN — (cunt  ill  tied)  :                                                      von.  page. 

when  made  after  service  of  summons ..  Ill  226 

demand  and  refusal Ill  226 

where  property  to  be  replevied  has  been 

taken   on   process    Ill  226 

value  of  chattel Ill  220-227 

where  made  by  ayent,  etc Ill  227 

requisition    Ill  227 

to  what  sheriff  directed   Ill  227 

nature  and  effect  of    Ill  227 

how  far  affidavit  and  requisition  are  protec- 
tion to  sheriff Ill  224,  227 

affidavit   and   requisition    must    be   filed   by 
sheriff,     together   with    undertaking     and 

officer's    return    Ill  233 

undertaking  by   plaintiff  in    Ill  223, 

227-229 
must  be  delivered   to  sheriff  with  affidavit 

and   requisition Ill  223, 

227,  233 

requisition   and  form    Ill  227-229 

need  not  be  approved  by  court Ill  228 

approved   by   sheriff    Ill  228 

motion  to  set  aside  proceedings  because  of  defec- 
tive papers Ill  229-230 

how  motion   made Ill  229 

irregularity  to  be  specified  in  notice  of Ill  229 

motion  must  be  promptly  made Ill  229 

what  constitutes  waiver  of  defects Ill  229 

court  may  allow  amendment  of  papers,  upon 

terms    Ill  230 

how  chattel  to  be  replevied   Ill  230-231 

rights    and    duties    of    officer    in    executing 

requisition Ill  230-234, 

239,  240 

custody  of  property  by  slioriff Ill  231-234, 

239,  240 

sheriff  is  bailee  for  hire    Ill  231 

must    retain    property   at   least   three    days 
after  taking  and  until   sureties  justify,  if 

excepted  to    Ill  231 

how  far   sheriff  liable  for   property Ill  232-233 

liability   for  wrongful   delivery    Ill  233 

return  of  sheriff  to  be  filed    Ill  233 

compelling  return Ill  233-234 

compensation  of  sheriff,  liow  fixed Ill  231-232 

exception  to  plaintiffs  sureties    Ill  234 

justification   of  s-ucli   sureties    TIT  234 


INDEX.  773 

RErLE\'IX — (cuiilinucd)  :                                                           vol.  page. 
effect  of  such  exception  on  defendant's  right 

to  return  of  property ITI  234 

re-delivery  of  property  to  defendant Ill  234-237 

right  of  defendant  to,  not  cut  off  by  plain- 
tiff's delay  in  taking  cliattels    Ill  235 

what  papers  to  be  served  with  demand  for 

return  of  property    HI  234-235 

affidavit  on  demand,  v.'hat  to  contain .  .  Ill  235-236 
undertaking  on  demand,  form,  contents 

and  effect Ill  236-237 

justification    of    sureties    Ill  231,  234, 

235,  237- 
238,  241 

where  to  take  place    Ill  237 

by  what  code  provisions  governed Ill  237-238 

rights  of  sureties  Ill  237, 

241-242 

action  on  the  undertaking    Ill  238-239 

when  can  be  maintained    Ill  238 

sheriff's  return  presumptive  evidence  in.... Ill  238 

what  is  defense  to  action   Ill  238-239 

effect  of  action  on  undertaking  on  right  to 

replevin Ill  239 

proceedings  on  claim  of  title  by  third  person ....  Ill  239-242 
such   claim   made   by   affidavit    delivered   to 
sheriff  before  he  has   delivered  the   prop- 
erty  Ill  239-240 

third  party  may  also  ask  to  be  made  party 

defendant  and  assert  claim  in  that  way.. Ill  240 
what   kind   of   ciaim   the   third   party   must 

have Ill  240-241 

duty  of  sheriff  where  such  claim  made Ill  239, 

240,  24] 
indemnity  to  be  furnished  sheriff  by  plain- 
tiff   Ill  241 

action  by  third  person  against  sheriff Ill  242 

second  and  subsequent  replevin  where  only  part 

of   chattels   replevied    HI  242-243 

REPLY : 

defense  of  statute  of  limitation  to  counterclaim  must 

be  pleaded  by I  117 

when  plaintiff  may I  457 

may  be  directed  by  the  court   I  457 

what  defenses  do  not  require I  458 

what  waived  by I  458 

what  must  contain I  459 


774  INDEX. 

REPLY — (continued)  :                                                                 vor,.  page. 

may  contain  counterclaim ' I  460 

judgment,  on  failure  to   I  460 

when  waived  by  defendant   I  461 

grounds  of  demurrer  to.     See  Demurrer. 

REPORT: 

of  referee,  see  Referee  and  Reference. 

in  ejectment,  estate  of  plaintiff  to  be  stated Ill  20 

in  partition,  see  Partition. 

REQUESTS  TO  CHARGE: 

See  Trial  by  Jury. 

RESERVATION: 

of  cases  for  trial II  259 

RESIDENT: 

may  designate  person   to   receive  service   during   ab- 
sence       I  203 

how  such  designation  revoked    I  204 

RESOLUTION: 

of  municipal  corporation,  how  proved II        114-115 

RESTITUTION: 

when  ordered  by  appellate  court  on  reversal II       833-836, 

957,  958 
appellate  division  order  granting,  not  reviewable  in 

court  of  appeals II  834 

order  for,  may  be  enforced  by  execution II  964 

See  Appeal  and  Justice  of  the  Peace. 

RETAINER: 

of  attorney,  when  must  be  in  writing I  39 

authority  of  attorney  under   I  39 

RETURN : 

of  deputy,  conclusive  upon  sheriff   I  21 

by  sheriff  upon  execution  of  process I  23 

how  compelled  I  23 

in  special  proceedings,  where  filed   I      290,  291 

amendment  of    I  792 

See  Court  of  Appeals. 
See,  also,  Execution. 
See,  also.  Justice  of  the  Peace. 
by  sheriff,  upon  execution  of  requisition  in  replevin.  .Ill  233 

how  compelled Ill        233-234 

REVIVAL  OF  ACTION.    See  Abatement  of  Action. 

RULES: 

of    practice    where    found     I  1 

courts  of  record  may  make I  2 


INDEX.  i i 5 

s. 

SALE :                                                                                               VOL.  PAGE. 

when   ordered    in   partition    Ill  55,  64-65 

how  made IIT  66-73 

notice  of,  how  given Ill  66-67 

how  property  described  in   Ill  07-68 

remedy  where  no  proper  notice  given Ill  68 

of   postponement    Ill  68,  72,  138 

duties  of  officer  making   Ill  68-69,  138 

must  obey  direction  of  judgment    Ill  68,  138 

may  apply  to  court  for  instructions Ill  68 

when  may  sell  in   parcels   Ill  68,  70 

cannot  delegate  his  power   Ill  69,  139 

when  may  be  compelled  to  proceed Ill  69,  138 

may  adjourn  sale Ill  69,  ]  38 

should   advertise   postponement    Ill  138 

is  officer   of  the  court    Ill  71 

cannot  be  purchaser  at  sale   Ill  72 

where  made Ill  69,  70 

must  be  made  at  public  auction  to  highest  bidder . . .  Ill  69 

how  conducted Ill  69-70,  138 

at  what  time  of  day  to  be  had Ill  70 

terms  of Ill  7 1 

not  within  statute  of  frauds   Ill  71,  140 

how  order  for  stay  of,  procured Ill  71,  141 

procedure  where  officer  appointed  to  make,  does  not 

appear Ill  71-72 

report  of,   when   to  be  made    Ill  73 

what  to  contain Ill  71,  73 

exceptions  may  be  filed  to Ill  74 

how  confirmed Ill  74 

when  set  aside  and  resale  ordered   Ill  74-77 

discretionary   Ill  74,  76 

may  be  set  aside  as  against  bona  fide  purchaser.  .Ill  74 

for  inadequacy Ill  75 

for  fraud,  accident  or   mistake    Ill  75 

for  improper  conduct  at  sale   Ill  76-77,  80 

application  for,  by  whom  made   Ill  76 

when  made Ill  76 

conditions    imposed    in   granting Ill  140 

purchaser,  who  may  not  be Ill  72 

what  title  may  be  insisted  upon Ill  77-78,  80 

purchaser    may   be   compelled    to    complete    pur- 
chase    Ill  78,  140 

when  will  be  relieved  from  purchaser   Ill  78-81 

title  purchaser  gets    Ill  81 

entitled  to  possession  Ill  81 


77r>  INDEX. 

SALE — {contiuuril)  :                                                                   vor,.  page. 

■when  entitled  to  rents  and  profits Ill  82 

how  put  into  possession    Ill  98-99 

how  piirclmse  money  secured    Ill  82 

proceeds,  how  distributed  Ill  84-85 

to  be  ordered  by  the  court Ill  85 

distribution  where  estate  of  decedent  interested.  .Ill  86 

where  party  is  an  infant  or  unknown Ill  87-88 

where-  a  dower  right  exists   Ill  88-90 

taxes,  assessments  and  water  taxes  to  be  paid.. Ill  92,  133 

how  proceeds  invested  for  tenant,  etc Ill  92 

when  security  to  refund  required   Ill  97 

when  ordered  in  action  of  admeasurement  of  dower.. Ill  112 
in  action  of  admeasurement  of  dower,  by  what  pro- 
visions  governed    Ill  118 

liow"  directed  on  foreclosure    Ill  132 

expenses  of  sale  to  be  paid  Ill  132  133 

taxes  and  assessments  to  be  paid    Ill  133 

how  and  by  whom  made Ill  138 

duties  of  referee  on    Ill  138-140 

order  of  sale  may  be  directed  in  judgment Ill  132 

order  of  sale,  if  not  directed Ill  139-140 

re-sale  and  conditions  imposed  in  granting Ill  140 

proceedings  where  purchaser  refuses  to  complete. Ill  140-141 

liability  in   such   case    Ill  140-141 

conveyance  on,  see  Conveyance. 

referee's   report   of    Ill  143 

money  received  on,  how  disposed  of Ill  143 

See,  also,  SuRPLtrs  Moneys. 

confirmation  of  report  of  sale    HI  143-144 

in  action  to  foreclose  lien  on  chattel  Ill  159 

duration  of  right  to  sell  real  property  for  payment 

of  debts Ill  380 

how  property  directed  to  be  sold  in  judgment  credi- 
tor's action Ill  429 

SATISFACTION: 

of  part  of  plaintiff's  claim 1  764 

when    ordered    I  764 

as  to  what  causes  of  action  I  764 

where  application  for  to  be  made   I  766 

what   judgment    entered    I  766 

of  judgment II  703-705 

See  Judgment. 

SATURDAY: 

noon  to  midnight  of,  to  be  holiday I  6 

SAVINGS  BANK: 

interpleader  in  action  against   I  312 


INDEX.  777 

SCHOOL  DISTRICT:                                                                 vor,.  page. 

when  trustee  of,  may  sue  or  be  sued I  ]  55 

SEAL: 

of  courts I  16 

SEALED  INSTRUMENT: 

action  on,  when  barred    I  92 

SECURITY  FOR  COSTS: 

when  a  matter  of  right  to  defendant   II  518-525 

who  may  be  required  to  give    II  518-519 

what  is  non-residence   II  521-522 

in  what   actions  begun  in  what  courts,   may  be   re- 
quired    ■ II  520-521 

non-resident  executor  of  domestic  estate,  not  required 

to  give ; II  522 

foreign  government  may  be  compelled  to  give II  519 

corporation,  when  required  to  give    II  519,  520 

522 

infant,  when  required  to  give  II  522-523 

need  not  give  when  authorized  to  sue  as  poor  per- 
son       II  523 

right  of  defendant  to  require,  how  waived II  523 

in  action  against  officer  of  militia,  etc II  525 

when  discretionary  with  court  to  lequire II  520 

525-527 

grounds  upon  which  discretion  exercised   II  526-527 

review  of  discretion  by  appellate  division II  527 

application  for  order  for,  when  and  to  whom  to  be 

made II  527-528 

when  right  lost  by  delay    II  523,  527 

when  application  may  be  made  ex  parte II  528 

on  what  papers  application  made   II  528-529 

order,  what  to  contain   II  529-530 

undertaking  upon   II  530-534 

form   of    II  530 

how  to  be  executed    II  530 

what  to  contain II  531 

exception  to  sureties II  531-532 

justification  of  sureties II  532 

additional  security,  when  and  how  may  be  required. .   II  532-533 

deposit  upon,  when  given  instead  of  undertaking II  533-534 

how  undertaking   enforced    II  534 

effect  of  failure  to  give II  534-536 

liability  of  attorney  where  security  not  given II  535-536 

how  liability  extinguished   II  536 

how  enforced H  536 

in  special  proceedings II  536 

in  taxpayer's  action  to  prevent  waste Ill  452-453 


77S  INDEX. 

SECURITY  FOR  COSTS— (co«/i>iued)  :                               vor,.  page. 

by  relator  in  action  against  usurper  of  office Ill  485 

non-resident  judgment  creditor  cannot  be  compelled 

to  give,  in  supplementary  proceedings   Ill  583 

when  receiver  must  give,  in  supplementary  proceed- 
ings   Ill  599 

SECURITY  ON  APPEAL: 

See  Appeal,  Appellate  Division,  Court  of 
Appeals,  Subeogate's  Coukt  and  Justice 
OF  THE  Peace. 

SEPARATE   TRIAL: 

between  plaintiff  and  one  of  several  defendants II      222,  223 

SEPARATION: 

action  for,  see  ^Matbimonial  Actions. 

SEQUESTRATION: 

of  defendant's  property  to  pay  alimony,  see  Matri- 
monial Actions. 

SERVICE: 

of  papers  cannot  be  made  on  Sunday  I  4,  5 

of  process  may  be  made  on  holidays  other  than  Sun- 
day     I  G 

of  process  of  sheriff    I  20 

on  sheriff,  how  made I  24 

upon  county  treasurer,  how  made  1  120 

on  unknown  defendant  in  partition   I  174 

of  summons  on  guardian  ad  litem  of  absent  infant  de- 
fendant     I  180 

of  summons,  see  Summons. 

of  process  to  commence  special  proceedings,  how  made  I  211 
of    summons,    voluntary    general    appearance,    when 

equivalent  to I  231 

of  notice  of  motion I  264 

order  to  show  cause  provides  short  time  for I  265 

when  and  how  to  be  made  of  copy  of  order I  279 

on  whom  to  be  made   I  186 

when  may  be  made  on  clerk   I  286 

personal,  how  made,  on  party  or  attorney I  286 

by  mail,  how  made  on  party  or  attorney I  286 

proof  of,  see  Proof  of  Service. 

of  notice,  personal,  must  be  eight  daj's I  292 

by  mail  sixteen  days I  292 

time  for  service,  how  computed I  292 

when  double  time  allowed   I  294 

how  completed I  333 

when  complaint  to  be  served  I  422 


INDEX.  779 

SERVICE — (continued):                                                            VOL.  page. 

of  order  of  injunction,  and  papers  on  which  granted.  I  589 
when  judgment  by  default  may  be  entered  after  sub- 

tituted,  or,  by  publication II  708-709 

of  summons  by  publication  in  action  in  court  not  of 

record  to  foreclose  mechanics'  lien   Ill  170 

SET  OFF: 

what  it  is I  439 

distinguished  from  counterclaim I  439 

SETTLEMENT: 

costs  of 11  018 

SETTLEMENT  OF  ISSUES.     See  Issues. 

SEVERANCE: 

of  action,  when  part  of  claim  admitted I  764 

SHAM  PLEADINGS.     See  Answeb. 

SHERIFF: 

to  open  and  adjourn  court  in  absence  of  judge I  11,  12, 

an  officer  of  the  court I  20 

powers  and  duties  of I  20 

liable  for  acts  of  deputy I  21,  22 

when  not  liable  for  acts  of  deputy I  21,  22 

deputy's  return  conclusive  upon   I  21 

not  to  practice  as  attorney    I  22 

cannot  purchase  at  execution  sale    I  22,  23 

cannot  execute  process  in  his  own  favor   I  23 

cannot  be  bail    I  23 

must  give  receipt  for  mandate I  23 

how  process  to  be  executed  by   I  23 

return  of  execution  of  process   I  24 

how   service   made   upon    I  24 

when  punished  by  court    I  24 

must  attend  courts   I  25 

relation  and  duties  of  outgoing  and  incoming I  25 

fees  of I  26 

limitation  of   action  against    I  97,  100 

when  leave  to  sue  bond  of,  necessary I  125 

what  must  appear  before  granting  leave  to  sue I  125 

more  than  one   order  granting  leave  to  sue  may  be 

made   I  126 

how  summons  served  upon I  199 

certificate  of  service  of  summons  by  I  211 

what  certificate  must  show I  211 


780  INDEX. 

SHERIFF — (cuiilinunl)  :                                                                VOL.  PAGE, 
liability  of,  in  arrest  and  bail  on  failure  of  sureties  to 

justify I  629 

rights  and  liabilities  as  to  bail,  sec  Abbest  and 
Bail. 

must  execute  warrant  of  attachment   I  644 

may  require  indemnity  on  executing  such  warrant..     I  645 

See,  also,  Attachment. 
responsibility  for  sufficiency  of  sureties  in  undertak- 
ing to  discharge  attachment    I  689 

must  regain  possession  of  personal  property  after  at- 
tachment         I  693 

after  judgment,  may  collect  whatever  attached I  003 

when  may  sell  property  attached  after  levy I  '       693 

to  whom  property  given  after  warrant  of  attachment 

vacated  I  094 

to  deliver  books,  etc.,  to  defendant  after  attachment 

vacated   I  695 

to  file  return  after  attachment  vacated I  096 

amendment  of  certificates  and  deeds  of I  792 

duty  of,  under  writ  of  habeas  corpus,  to  testify II  93 

certificate  of  sale  by,  prima  facie  evidence II  97 

inventory  of  attached  property  evidence  against  him.  II  97-98 

fees  of II  0.59 

006-071 

fees  for  serving  papers    II  039,  666 

fees  for  levying  warrant  of  attachment II  667 

009-070 

fees  for  copy  of  papers  served    II  667 

fees  for  notifying  jurors   II  667-668 

fees  on  execution II  668-669 

070-671 

fees  for  returning  mandate    II  669 

fees  for  selling  real  property  vmder  judgment II  669 

when  statutory  fees  to  be  allowed  tc   II  670-671 

to   return   satisfaction   of   judgment   on    payment   of 

execution   II  705-706 

duty  of,  on  writ  of  inquiry   II  723-724 

execution  to  be  directed  to   II  989 

duty  upon  receipt  of    II  990 

instructions  to,  upon  execution  II  991-992 

return   of   execution  by II  992-994 

how  far  process  of  execution  protection  to II  995 

cannot  purchase  on  execution II  999 

how  execution  collected  after  death  or  disqualification 

of II  099-1000 

how  to  make  levy  on  execution   II  1018-1028 

in  action  against,  indemnitor  may  be  substituted.  ...    II  1024-1028 


INDEX.  781 

SHERIFF — [continued)  :                                                         vol.  page. 

duty  on  sale  of  real  property   II  1037-1041 

conveyance  by,  of  real  property  on  execution II  1057-10G2 

See  Execution. 

rights  and  duties  of  in  replevin Ill  224,  227 

230-234 
239,  240 
See,  also.  Replevin. 
duty  of,  on  receiving  property  in  supplementary  pro- 
ceedings   Ill  577-578 

SHERIFFFS  JURY: 

what  is II  1022-1023 

SHORT   CAUSE:' 

what  cause  put  on,  calendar  and  how   II  248,  259 

SIGNAL  SERVICE: 

when  observations  of  U.  S.  may  be  proved II  117 

SLANDER: 

rule   for   pleading   in    I  330 

SPECIAL  PROCEEDINGS: 

attorney's  lien   in    I  4G 

statute  of  limitations  applies  to   I  118 

service  of  process  to  commence,  how  made I  211 

papers  in,  where  filed    I  291 

when  reference  may  be  ordered  in II  412-413 

security  for  costs  in   II  536 

costs   in   II  566-567 

623 

costs  on  appeal  in   II  598,  617 

filial  adjudication  in,  called  ''  final  order  " II  680 

what   is    II  841-842 

appeal  to  court  of  appeals  from  final  order  in.  .  .    II  840 

841-844 
See  Court  of  Appeals. 
appeal  to  appellate  division  from  order  in,  in  supreme 

court    II  899-901 

See  Appellate  Division. 

SPECIAL  TERM: 

application  for  final  judgment  may  be  made  at,  after 

referee's  report II  447 

when  motion  for  new  trial  to  be  made  at II  472 

478,  487 
See  Supreme  Court. 


782 


INDEX. 


SPECIAL  VERDICT: 

Sec  Verdict. 


PAGE. 


SPECIFIC   PERFORMANCE: 

action  for,   wheu  barred    I 

STATE: 

when  jJropcT   party  defendant    1 

STATE  PRISON: 

superintendent  of,  how  named  in  action I 

STATE  WRIT: 

in  whose  name  to  be  issued   I 

STATUTE: 

where  no  provision  made  by,  what  practice  controls.  .      I 

private,  how  alleged  in  pleading  I 

proof  of,  from  newspaper,  when  may  be  made II 

of  another  state  or  foreign  country,  how  proved II 

how  construed,  as  applied  to  corporations Ill 

STATUTE  OF  LIMITATIONS.  See  Limitation  of  Action. 


92 


155 


156 


154 


2 
326 
108 
118 
310 


STATUTE  LIABILITY: 

when  barred  in  six  j'ears 


I 


93 


STAY  OF  PROCEEDINGS: 

by  whom  granted 

judge  out  of  court  can  only  grant  for  twenty  days 

practice,  when  longer  stay  required   

when  granted  on  motion  to  change  place  of  trial.  . 

effect  of 

when  deemed  vacated  on  decision   

for  non-payment  of  costs  of  motion 

offer  of  compromise,  operates  as   

for    commission    

on  motion  to  change  place  of  trial 

to  prevent  multiplicity  of  sviits    

where  several  actions  pending  for  same  cause 

in  one  action  to  abide  event  of  another 

after  adjudication  of  banliruplcy 

after  discharge  in  bankruptcy 

when  necessary,  to  prevent  injustice 

until  costs  of  former  action  paid 

discretionary     in    such    casos,    and    may    be 
waived 11 


I      266 

I      267 

I      267 

I      268 

I      268 

1      279 

I      281 

I      771 

11       56 

11    i:)4-'l56 

11      200 

If    200-201 

1 1      201 

1 1      2(12 

1 1   2rt2-2u:i 

11   2(i:;-2ti4 

1 1    2114-209 

204-211.5 


INDEX.  783 

STAY  OF  PROCEEDINGS— (coniin wed)  :                            vol.  page. 
does  not  apply  to  a  persou  allowed  to  sue  as  a 

poor  persou II  206 

not  granted  until  adjustment  of  costs II  207-208 

motion  costs  unpaid II  208-209 

can  be  granted  by  court  only II  209 

motion  for,  how   made II  209-210 

after  verdict II  383 

where  exceptions  ordered  to  be  heard  in  first  in- 
stance at  appellate  division II  507 

on  motion  for  new  trial  after  interlocutory  judg- 
ment    II  510 

on  appeal,  see  Appeal. 
on  appeal  from  inferior  court  to  appellate  division 

how  applied  for II  886 

on  appeal  to  appellate  division  from  supreme  court  II  902-904 

on  appeal  from  surrogate's  court II  925-927 

on  appeal  from  final  judgment  in  action  for  ad- 
measurement of  dower Ill  119 

as  to  sale  in  partition  or  foreclosure Ill  141 

in  supplementary  proceedings,  to  move  to  set  aside 

judgment Ill  545 

upon  appeal Ill  548 

STENOGRAPHER: 

fees  of II  672-674 

who  liable  for II  672-673 

minutes  of  trial,  when  taxable II  637-639 

673-674 

STIPULATION: 

when  must  be  in  writing I  284 

STOCKHOLDER: 

when  one  may  sue  for  all I  160 

action  by  or  against  trustees  of  corporations,  see 
Corporation. 

when  not  excused  from  testifying Ill  336 

in  action  against,  cannot  plead  misnomer  or  death 

of  another  defendant Ill  336 

court  can  amend  to  remedy  such  defects.  ..  .Ill        336-337 

who  regarded  as Ill  338 

See,  also,  Corporations   and  Joint   Stock 
Associations. 

STRICT  FORECLOSURE: 

history  and  use  of  the  action Ill        125-126 

1.53 
object  of  action Ill  153 


784  INDEX. 

fcJTlllCT  FORECLOSURE — (continued)  :                               vol.  I'Aue. 

wliL'U   is   proper  remedy 1 H  liJ6-lo-i 

liiiiiuitious   ou    use   oL' Ill  lo-4 

proceedings  iu Ill  155 

parties   iu  Ill  155 

pleadiugs  iu 1 1 1  155 

judgiueut  iu,  Iiow  eutered HI  155 

what   to    contain ill  155-15U 

time  of  redemption  to  be  tixed  in Ill  156 

amount  due  ou  mortgage  to  be  specified  iu.  . .  .ill  15U 

effect  of HI  15G 

costs  Iu,  discretionary HI  15(j 

STRUCK  JURY: 

wlieu  may  be  ordered H  285 

wliat  order  for,  must  contain II  285 

application  for,  where  made H  28G 

application,  affidavit  upon,  Avhat  must  show II  2SG 

cases  in  which  granted II  286-287 

what  notice  to  be  given II  287 

to  be  strucli  by  clerls: II  287 

by  whom  struclc  when  cleriv  interested II  289 

how  struck II  288 

list  (if,  to  be  made  and  certified II  288 

jurors  to  be  notified  by  sheriff II  288 

by  whom  notified  Avhen  sheriff"  interested II  289 

how  trial  jury  selected  from II  288 

expense  of,  paid  by  party  applying  for II  289 

SUBMISSION   OF   CONTROVERSY   WITHOUT   ACTION: 

costs   on    II  567,  608 

additional  iiUdwance  oauuot  be  granted  in II  623 

who  may  submit II  767,  768 

what  questions  may  be  sulimilted II  767,  768 

court  can   niiike   no  iufereuces,   and    is   bound   by 

statement H  7GS,  771 

ou  what  papers  stibmissiou  to  be  made II  767,  769 

what   statement  must  contain... II  769 

case,  submission,  etc.,  to  be  filed II  770 

order  of  arrest,   temporary  injunction,   or  attach- 
ment cannot  be  granted  iu II  770 

where  hearing  to  be  had  II  770 

Avhat  papers  to  be  used  ou  hearing II  770 

by  whom   pMiicrs  furnished II  770-771 

neAV  parlies  cannot  be  brought  in  on IT  771 

relief  or  judgment  to  be  granted  on II  771 

rmondment    or    additional    statement    may    be    al- 

liiNvcd   II  772 

when  sul)missiou  will  not  be  eutertaiueil II  772 


INDEX.  785 

SUBPOENA:                                                                           vol.  page. 

what  court  may  issue II  79-80 

contents  of II  79 

service  of II  80-81 

time  of  service  of II  80 

fees  upon  service  must  be  paid II  80 

wliat  fees II  81-82 

who  may  serve  it II  80-81 

how,  may  be  served II  81 

proof  of  service II  81 

penalty  for   disobedience II  88-90 

what  suflBcient  excuse  for  disobedience II  88 

how  disobedience  punished  by  officer  other  than 

court II  89-90 

SUBPOENA  DUCES  TECUM: 

must  be  served  to  compel  production  of  document  II  84 

when  must  be  served II  84 

fees  upon II  84-85 

duty  of  witness  under II  85 

penalty  for  failure  to  produce II  88-90 

what  papers  need  not  be  produced II  85-86 

attorney,  when  need  not  produce  papers  of  client.  .  II  85-86 

books  of  corporation,  how  production  of,  procured  II  87 

when  attendance  of  officer  not  required  under. ...  II  86-87 

SUBSTANTIAL  RIGHT: 

meaning  of II  896-898 

919-920 

SUBSTITUTION: 

of  attorney,  how  made I  44 

SUMMARY  PROCEEDINGS: 

to  fix  attorney's  compensation I  50 

when  restrained  by  injunction I  563 

final  order  in,  reviewable  by  appeal II  774 

SUMMING  UP.     See  Trial  by  Jury. 

SUMMONS: 

how  issued  in  name  of  infant I  182 

how  served  on  unknown  defendant  in  partition..  I  174 
when  may  be  served  on  guardian  ad  litem  of  infant 

defendant I  186 

action  commenced  by  service  of I  189 

50 


786 


INDEX. 


SI' MMOSiS— [continued)  :  VOL. 

couteuts  of 

in  aialriruonial   action    Ill 

how  names  of  parties  may  be  stated  in 

how  party  designated,  when  name  unlcnowu 

place  of  trial,  how  stated  in 

subscription  of,  what  sufficient 

form  of 

how   amended   

complaint  maj'  be  served  with 

notice  when  copy  of  complaint  not  served  with. .. 

how  and  Avheu  amended 

when  must  contain  reference  to  statute  on  which 
suit  brought 

what  reference  sufficient,  in  action  for  penalty 

how,  such  reference  waived 

notice  of,  no  personal  claim  witli 

by  whom  personal  service  may  be  made 

service  on  natural  person,  how  made 

upon  infant,  defendant,  how  made 

upon  idiot  or  habitual  drunkard,  how  made. .. 
when  court  may  designate  person  to  be  served.  .. 

how  served  upon  sheriff 

personal  service,  how  must  be   made  within  the 

state  

when  service  of,  will  be  vacated 

who  privileged  from  personal  service 

on  what  days  cannot  be  served 

designation  of  person  on  whom   service  may  be 
made 

how  designation  revoked 

service  of,  on  domestic  corporation 

remedy  for  irregular  service  on  corporation. . 
service  of.  on  foreign  corporation 


Ill 


personal  service,  proof  of,  how  made 

when  may  be  proved  by  admission 

affidavit  of  service,  what  must  appear  in.  . 

genuineness  of  admission  must  be  ])r()veii. 

what  admission  must  show 

substituted  service,  when  it  may  be  made.... 

affidavit  for,  what  must  show  

oi'dcr  for  substituted  service,  contents  of.  . 

or,U  V  must  be  filed  within  ten  days , 

when   service   complete 


PAGE. 

190 
257-258 
11)  1 
181 
192 
192 
192 
192 
193 
193 
193 

195 
196 
196 
197 
197 
198,  2(XJ 
199 
199 
199 
199 

200 
200 
201 
203 

204 

204 
205 
206 
207 
320 
211 
211 
212 
213 
213 
214 
215 
216 
217 
217 


INDEX. 


787 


SUMMONS—  ( con  tin ued )  :  vo 

service  of,  by  publication,  in  wliat  cases  made  . . . 
wlien  made  on  person  otlier  tlian  defendant.  . 

when  may  be  made  upon  resident 

application  for,  what  must  appear  in 

order  for  publication  of,  by  whom  made 

must  be  made  by  judge 

what  order  must  contain 

service  by  publication,  how  made 

notice  to  be  published  with  summons 

notice  in  action  of  partition  to  be  published 

with 

In  matrimonial  actions  to  be  published  with.  . 

papers  must  be  filed 

publication  of,  how  made 

when  complete 

service  under  order  of  publication 

mailing,  when  may  be  dispensed  witli  under  such 

order  

proof  of  service  by  publication,  how  made. . .  . 
when  defendant  allowed  to  defend  after  service 

by  publication 

service  without  the  state 

when  voluntary  general  appearance,  equivalent  to 

personal  service  of 

when  and  where  filed 

when  complaint  dismissed  for  failure  to  serve. . . . 

not  amendable  of  course 

how  may   be   amended 

when  court  may  order  supplemental,  on  substitu- 
tion of  party  

what  required  to  be  on   face  of.  in  matrimonial 
action  II 

SUNDAY: 

courts  shall  not  be  open  on 

extends  from  midnight  to  midnight 

process  cannot  issue  or  be  served  on 

process  retiu-nable  on,  not  void 

.ludgment  entered  on.  void 

habeas  corpus  may  be  issued  and  served  on 

award  cannot  be  made  on 

notice  of  motion  cannot  be  served  on 

in.iunction  may  be  issued  and  served  on 

verdict  may  be  received  on 

no  instructions  to  be  given  to  jury  on 

holidays  and  half-holidays  to  be  considei-ed  as... 


PAGE. 

217 
218 
217 
219 
223 
223 
223 
224 
225 

226 

226 
225 
227 
227 
227 

225 
228 

228 
227 

231 
290 
314 
361 

779 

827 

257-258 
269 


5 
4 

4,5 


788  INDEX. 

SUPERINTENDENT  OF  THE  I'OOK:                            VOL.  page. 

when  may  sue  or  be  sued I  l'>5 

SUPERSEDEAS: 

after  order  of  arrest I  521 

SUPERVISOR: 

wheu  may  sue  or  be  sued I  155 

proceedings  of  board  of,  how  proved II  114-115 

SUPPLEMENTAL  PLEADING: 

when  court  may  allow I  372 

application  for,  must  be  on  notici; I  373 

allo'ivauce  of,  discretionary   I  373 

on  application  for,  court  will  not  pass  on  pleading     I  373 

object  of I  374 

what  may  be  set  up  by I  374 

may  be  in  addition  to  original  pleading I  376 

terms  of  allowance,  in  discretion  of  the  court....     I  376 

what  terms  may  be  imposed I  372 

when  demurrer  may  be  interposed  to I  465 

when  may  be  ordered  on  substitution  of  parties. .     I  827 

SUPPLEMENTARY  PROCEEDINGS: 

application  of  leave  to  sue  by  receiver  in I  130 

special  requirements  of  affidavit  in I  256 

stayed  by  nun-payment  of  costs I  282 

papers  in,  filed  when  and  where I  291 

cannot  be  had  on  judgment  against  executors. ..  .Ill  356 
how  far,  have  taken  place  of  judgment  creditor's 

action Ill  403 

nature  and  object  of  proceeding Ill  497,  499 

takes  place  of  creditor's  bill Ill  497-498 

499 

is  a  special  proceeding HI  498,  536 

commenced  by  service  of  order Ill  499 

service  of  order  gives  creditor  lien  on  debtor's 

property Ill  499 

not  intended  to  take  place  of  execution  in  reaching 

real  property Ill  499 

proceedings   substantially   same   as   on    creditor's 

bill  .   .  .    Ill  499-500 

when  order  may  be  granted Ill  500-518 

who   is  judgment  creditor Ill  508 

upon  Avhat  judgment  and  execution Ill  500-508 

must     be     a    judgment     rendered     upon 
debtor's  appearance,  or  personal  service 

on  him Ill  500 

what  is  appearance Ill  501 


i 


INDEX.  789 

SUPPLEMENTARY  PROCEEDINGS— (con^mwed):         vol.  page. 

provision  as  to  appearance  does  not  apply 

vp-here  judgiueut  is  against  pIainti£E III  504 

must    be    judgment    for    not    less    than 

twenty-five  dollars HI       500,  526 

this    sum   need   not   be   exclusive   of 

costs Ill       500-501 

527 

except  in  certain  minor  courts Ill       501,527 

may  be  granted  on  judgment  on  forfeited 

recognizance Ill  501 

may  be  granted  on  appellate  division  or- 
der for  costs,  on  reversal Ill  501 

may  be  granted  on  order  in  special  pro- 

ceediugs Ill  508 

may  be  granted  on  judgment  of  United 

States  court Ill  506 

may  be  granted  on  order  directing  pur- 
chaser at  judicial  sale  to  pay  the  differ- 
ence on  re-sale Ill       507-508 

cannot  be   granted  where  judgment  has 

ceased  to  be  lien  on  real  property Ill  501 

cannot  be  had  on  judgment  against  do- 
mestic corporation  or  foreign  corpora- 
tion doing  business  here,  except  where 

brouglit  by  people Ill       501-502 

517 
cannot  be  granted  on  order  for  support  of 
children,     etc.,     pending     matrimonial 

action   Ill       513,515 

cannot  be  granted  on  judgment  of  just- 
tice's  court,  where  transcript  not  filed 

fill  after  expiration  of  six  years Ill  508 

to  sheriff  of  what  county  execution  must 

have  been  issued Ill      500,  502 

to  county  of  residence Ill  500 

502.  506 

or  place  of  business Ill       500,506 

what    is    place    of    business    or    resi- 
dence   Ill        506-507 

where  "  debtor     is     non-resident,     to 
sheriff  of  county  where  judgment 

roll   or   transcript   filed Ill       500,507 

what    property    or    earnings    cannot    be 

reached  by Ill  502 

property  exempt  from  execution Ill  502 

question  whether  property  is  exempt 

must  be  determined  in  jury  trial.  .Ill  504 


790  INDEX. 

SUPPLEMENTARY  PROCKEDIXGS—( conftnwed)  :         VOL.  page. 
trust  fund  where  trust  created  by  an- 
other   Ill       502,  503 

nor  income  of  such  fund Ill  503 

but    action    may    be    maintained    to 

reach   such   fund Ill  503 

debtor's  earnings  for  sixty  days  prior 
to    commencement    of    pi'oceedings 

necessary  to  support Ill  502 

Avhat  are  such  earnings Ill        503-504 

from   what   time   the   sixty   days 

computed Ill  503 

may  be  granted  to  collect  tax Ill       504-505 

may  be  granted  on  surrogate's  decree  direct- 
ing payment  of  money Ill       505-506 

may  be  had  against  infant Ill  507 

in,  against  foreign  counsel,  he  cannot  be  ar- 
rested   Ill  507 

who  privileged  from  arrest  in Ill  507 

title  of  property  claimed  by  third  person,  can- 
not be  tried  in Ill  507 

517-518 
may  be  instituted  by  attorney  in  his  own  in- 
terest   Ill       507,  508 

may  be  maintained  by  trustee Ill  508 

cannot  be  instituted  after  judgment  debtor's 

death Ill       508-509 

though  may  be  continued,  notwithstand- 
ing judgment  debtor's  death,  where  in- 
stituted before Ill  509 

three  remedies  provided  by Ill  509 

after  return  of  execution Ill       509-514 

when  may  be  brought Ill  509 

ten  years  limit  not  confined  to  first 

execution     unless     judgment     has 

ceased  to  be  a  lien  on  real  property. Ill  513 

when     brought     to     reach     property 

owned     jointly,     against     a     joint 

debtor  not  summoned Ill  510 

not  maintained  until  remedy  at  law 

exhausted Ill  510 

when  remedy  at  law  is  to  be  re- 
garded as  exhausted Ill       510-512 

when  two  executions  issued  and 
only   one   returned,   proceeding 

is  maintainable Ill        512-513 

as  against  partners Ill       513-514 


INDEX.  791 

SUPPLEMENTARY  PROCEEDINGS— (couiinwed)  :         vol.  page. 

issuance  of  second  execution  during 
pendency  of  proceedings,  constitutes 

no  objection  to  the  proceeding.  ..  .Ill  512 

levy  under  second  execution,  effect  of 

on  proceeding Ill  512 

attachment   issued   pending   proceed- 
ing does  not  constitute  a  bar  to  the 

proceeding Ill  512 

action  to  set  aside  fraudulent  assign- 
ment   may    be    instituted    pending 

proceeding Ill  512 

upon  a  tax Ill  513 

after  issue  and  before  return  of  execution.  .  .Ill        514-515 

when  and  upon  what  proof  granted Ill  514 

nature  of  the  proceeding  in  such  case.  ..  .Ill  514 

creditor  must  comply  closely  with  statute. Ill  514 

must    show    facts    entitling    him    to    the 

order Ill  514 

issue    of    execution,    necessary    condition 

precedent Ill        514-515 

against   third   person   or   corporation,    having 

property  of,  or  indebted  to,  judgment  debtor. Ill        515-518 
may   be   pursued   jointly    with   the   other 

remedies Ill  515 

may  be  granted  either  before  or  after  re- 
turn of  execution    Ill  515 

upon  what  proof  granted  Ill       515-518 

personal     property    or     indebtedness     must 

exceed  ten  dollars  in  value Ill  515 

notice  to  judgment  debtor  of  subsequent 

proceedings,  when  required Ill  516 

receiver  shall   not  be   appointed   without 

notice  to  judgment  debtor  Ill  516 

where  such  proceeding  had   Ill  516 

notice  to  judgment  debtor  of  application 

for  proceedings,  when  required Ill  516 

should   not  be  granted  except  in  a  clear 

case Ill       516-517 

cannot  be  granted,  where  judgment  debtor 

is  corporation   Ill  517 

cannot    be    granted    where    the    property 
sought  to  be  reached  is  in  the  hands  of 

third  person  as  receiver   Ill  517 

books  of  corporation  may  be  secured  in.  .Ill  517 
appointment  of  receiver  in  supplementary 
proceedings  does  not  bar  order  for  ex- 
amination of  third  person   Ill       517,546 


792  INDEX. 

SUPPLEMENTARY  PROCEEDINGS— (con <iHuecZ)  :         vol.  page. 
third  party  cannot  avoid  examination  by 
submitting  atfidavit  as   to   property   or 

judgment  debtor  held  by  him Ill  517 

lapse  of  ten  years  after  return  of  execu- 
tion bars  right  to  order Ill  517 

third  party  cannot  have  order  vacated  for 
irregularities  in  the  entry  of  the  judg- 
ment   Ill  517 

but'  may,  where  judgmenl  is  void.... Ill  517,546 
claim  of  title   by   third  party   cannot  be 

tried  in   Ill  517-518 

561 
unless   claimant   asks   the   court   to   do 

so Ill  518 

before  what  judge,  proceeding  had Ill  519-522 

justice  of  tlie  supreme  court Ill  519-520 

county  judge Ill  520 

judge  of  the  city   court  of  the  city   of  New 

York Ill  518,  519 

520-521 

in  what  county  examination  had Ill  502 

520-521 
may   be  granted  by  United   States  judge  on 

judgment  in  that  court  Ill  506 

but  not  by  judge  of  state  court  on  such 

judgment Ill  506 

order  of  arrest  in,  may  be  granted  by  same 
judge  as  one  who  grants  the  order  for  ex- 
amination   Ill  521 

before  what  judges  proceeding  continued.  ..  .Ill  521-522 

affidavit  to  obtain  order  for  examination Ill  522-531 

not  formerly  required    Ill  522-523 

necessary  now Ill  523 

by    whom    made Ill  524 

when  made  by  third  person,  what  to  con- 
tain   Ill  524 

where  third  person  has  no  authority   to 

make,  court  has  no  jurisdiction Ill  524 

what  is  sufficient  evidence  of  such  author- 
ity   Ill  524-525 

when  made  by  attorney Ill  525 

how  entitled  in  proceedings  on  justice's  judg- 
ment   HI  525,  537 

not  necessary  to  state  debtor  has  property.  .Ill  525 

creditor  proceeds  at  peril  of  costs Ill  525 

should  correctly  describe  judgment Ill  525 

must  set  forth  that  judgment  was  docketed.  .Ill  525 


INDEX.  793 

SUj^PLEMENTARY  PROCEEDINGS— (con^wued)  :  vol.  page. 
where    proceeding    is    on    justice's    judg- 
ment, must  show  transcript  filed Ill        525-526 

must  sliow  that 'judgment  is  for  at  least 

twenty-five  dollars Ill  526 

not  exclusive  of  costs Ill  527 

must  show  return  of  execution  unsatisfied, 

where  proceeding  is  one  of  that  nature. Ill  526 

what  shows  this  sufiiciently Ill  527 

must  state  whether  previous  application 

has   been   made Ill       527-528 

failure  in  this  respect  an  irregularity 

only Ill  528 

omission  may  be  supplied  by  amend- 
ment   Ill  528 

must  correctly  describe  the  person  against 

whom  the  proceeding  is  taken Ill        528-529 

must    show    residence    of    the    judgment 

debtor Ill  529 

on  application  for  examination  before  re- 
turn of  execution,  must  show  debtor 
has  property  which  he  unjustly  refuses 

to  apply  to  the  judgment Ill  529 

must  show  a  demand  for  the  applica- 
tion of  the  property  to  the  payment 

of  the  judgment Ill  529 

in  words  of  the  statute  sufficient  to 

give  court  jurisdiction Ill  529 

must  show   that  property  cannot  be 

reached   by   execution Ill  529 

to  examine  third  person Ill       529-531 

must  show  issuance  of  execution,  and 
either  it's  return  unsatisfied,  or  that 

it  has  not  been  returned Ill       529-530 

531 

must  also  show  that  party  sought  to 

be  examined  has  personal  property 

of  judgment   debtor,    exceeding   in 

value  ten  dollars,  or  is  indebted  to 

him  in  a  like  sum Ill  530 

should  state  sources  of  information.  .Ill  530 

effect  of  failure  to  do  so Ill  530 

should  not  be  in  the  alternative  as  to 

property  or   indebtedness Ill  531 

to  collect  tax,  what  to  show Ill  531 

to  obtain  -vvarrant  of  arrest Ill        531-533 

must  show  all  the  facts  necessary  to  ob- 

t'ain  order  for  examination Ill  531 


794  INDEX. 

SUPPLEMENTARY  VilOCEEDlSG^— (continued)  :  VOL.  PAGE, 

must  also  show  that  debtor  probably  has 
property,  aud  that  there  is  danger  of  his 
leaving  the  state  or  concealing  himself. Ill       531-533 
must  set  forth  facts  fairly  justifying  such 

conclusions Ill  532 

allegation  should  not  be  in  the  alternative 
as  to   leaving   the  state,   or  concealing 

himself Ill  533 

warrant  of  arrest  in    Ill        534-536 

when  may  be  issued    Ill  534 

at  any  time  during  proceedings Ill      533,  534 

proceedings  may  be  continued  to  allow  issu- 
ance  and   return   of    Ill  533 

furnishes  same  remedy  as  former  writ  of  ne  exeat.IIl  534 

what  to   contain    Ill      534,  535 

by  whom  granted Ill      521,  534 

before    whom    returnable Ill  534 

copj''    affidavit    and   warrant   to   be   delivered   to 

judgment  debtor,  on  his  arrest Ill      533,  534 

copies  served  must  be  so  complete  as  not  to 

mislead   Ill  527 

no  security  required  in   Ill        534-535 

granting  of,  discretionary    Ill  535 

how  vacated  or  modified Ill  535 

vacatur  of  order  for  examination  does  not  vacate, 

obtained  after  the  order    Ill  546 

undertaking  may  be  required  of  judgment  debtor 

as  to  appearance  and  disposition  of  property.  .Ill        535-536 
effect   of   failure   to   comply   with   tliese    re- 
quirements    Ill  536 

the  order Ill        536-548 

is  an  ex  parte  judge's  order Ill  536 

is  an   order   in  a  special  proceeding,  not  in  the 

action   Til  536 

what  to  contain Ill        536-540 

better,  though  not  necessary,  to  recite  facts 

warranting   order    Ill        536-537 

when  contains  recitals  of  such  facts,  cannot 

be    attacked    collaterally Ill  537 

how  entitled  on  transcript  of  justice's  judg- 
ment     Ill  537 

remedy,  when  entitled  in  justice's  court. Ill  537 

must   require    person    to   whom    directed    to 

appear  at  place  named   Ill  537 

where  to  appear,  if  resident Ill      537,  538 

if  non-resident   Ill        537-538 


INDEX.  T95 

SUPPLEMENTARY  PROCEEDINGS—  ( continued )  :         vol.  page. 
before  what  judge  or  referee  appearance 

should  be  directed Ill  538-539 

540 
if   no   time   and   place   stated    in,   order 

fatally  defective HI  539 

except    may    provide    that    referee 

named  in  order  may  fix Ill  539 

where  returnable  on  Sunday,  void    Ill  539 

may  combine  direction   for   appearance   of  judg- 
ment  debtor   and   third   person Ill  539-540 

service  of   HI  540-542 

how  made HI  540 

upon  corporation    Ill  540 

copy  of  affidavit  upon  which  order  is  granted 

must  be  served  with    Ill  527,  541 

such  copy  must  be  so  complete  as  not  to 

mislead   HI  527,  541 

when  must  be  made  to  acquire  jurisdiction. HI  540 

how  objection  as  to,  must  be  taken HI  540-541 

sheriff's  certificate  not  conclusive  proof  of.. HI  541 

effect   of   HI  542-543 

gives  inchoate  lien  which  is  not  taken  away 

by  an  appeal  from  the  judgment HI  542 

as  to  disposition  of  property  or  earnings  of 

judgment   debtor   HI  542-543 

where   irregular .  .HI  543,  544 

how  vacated  or  modified HI  543-546 

how  and  when  objections  to,  taken HI  543-545 

by  what  judge  or  court   HI  543 

where  judgment  debt  had  been  paid HI  543 

where   affidavit  insufficient    HI  544 

where  judgment   is  void    HI  544 

where  sheriff's  return  is  defective Ill  544-545 

proceedings    stayed    to    move    to    set    aside 

judgment    HI  545 

where  judgment  debtor   insolvent HI  545 

where  execution  issued  out  of  wrong  court.. HI  545 

as  to  effect  of  legal  presumption  of  payment. HI  545 
mere    irregularity    not    enough     to     require 

vacatur  without  notice    HI  546 

irregularity  to  be  specified  in  notice  of  mo- 
tion to  vacate HI  546 

third  party  order  not  vacated  because  of  ap- 
pointment of  receiver    Ill  546 

third  party  order  vacated   if  original  judg- 
ment  void   HI  546 

how  appealed  from HI  546-548 


796  INDEX. 

SUPPLEMENTARY  PROCEEDINGS— (con<m«ed):         vol.  page. 
on  county  court  execution,  by  appeal  direct. Ill  546-547 
on   execution   out   of   court   other   than    the 
county  court,  by  motion  to  vacate,  and  ap- 
peal from  the  order  on  such  motion Ill  546-547 

any  order,  intermediate  or  final,  affecting  a 
substantial  right  in  these  proceedings,  ijiay 

be  thus   reviewed Ill  547 

order  adjudging  debtor  in  contempt.  ..  .Ill  547 

order  dismissing  jiroceeding Ill  547 

order  directing  payment  of  money   . . .  .Ill  547-548 

where  court  had  not  jurisdiction    Ill  548 

effect  of,  as  to  staying  proceedings Ill  548 

injunction  remains  in  force  notwithstanding 

stay   pending   appeal    Ill  548 

injunction  in Ill  548-553 

by  what  judge  granted Ill  548 

when  may  be  granted Ill  549 

person  not  a  party  may  be  restrained Ill  549,  550 

551-552 

what  may  be  restrained  by    Ill  548-549 

as  to  earnings  of  judgment  debtor    Ill  549 

needs  no  seal  Ill  549 

no  security  required  to  obtain   Ill  549 

upon  what  papers  granted   Ill  550 

if  made  at  same  time  as  order  for  examina- 
tion,  or   warrant  of  arrest,   upon  papers 

upon  which  order  or  warrant  granted ....  Ill  550 

if   subsequently,   upon   affidavit    Ill  550 

what  such  affidavit   should   contain. ..  .Ill  650 

slight  grounds  sufficient Ill  550 

effect  of Ill  650  552 

affects  personal  property  of  judgment  debtor 

at  time  of  service Ill  651 

but  where  person  enjoined  has  knowledge  of, 
prior  to  service,  takes  effect  from  time  of 

such  knowledge Ill  551 

where  irregular,   is   not  void    Ill  651 

on  bank  served  with  third  party  order  as  to 

paying  out  deposits Ill  552 

on  public  officer,  as  to  paying  out  bail  de- 
deposited  with  him Ill  552 

continues  in  force  until  vacated  or  dissolved. Ill  552 
remains    in   force,   notwithstanding   stay   on 

appeal    Ill  548,  553 

how  vacated   or  modified    Ill  652-553 

may  be,  by  judge  or  court   Ill  552 


INDEX.  797 

SUPPLEMENTARY  PROCEEDINGS— (confmMed)  :         vol.  page. 
security  may  be  required  as  condition 

of  vacatur  or  modification Ill  552 

amount   of   security,   discretionary Ill  553 

should  be  for  not  less  than  the  amount 

due   the    creditor Ill  553 

what  is  "  further  direction  "  that  terminates 

injunction Ill  552 

appointment  of   receivers  is    Ill  552 

stay  pending  appeal  does  not  terminate. ..  .Ill  553 

by  abandonment Ill  552,  553 

mere  absence  of  referee  is  not Ill  553 

nor  indefinite  adjournment Ill  553 

unless  followed  by  a  long  period  of  in- 
action   Ill  553 

upon  what  evidence,   should  be  vacated ....  Ill  553 

referee  to  take  proof Ill  554 

when  may  be  appointed    Ill  554-556 

by  whom   appointed   Ill  554 

usually  designated  in  the  order  for  examination .  Ill  554,  555 

may  be   appointed   by  separate   order Ill  555 

who  may  be Ill  554-555 

remedy  where  improper   person   designated Ill  555-556 

may  be  authorized  to  fix  the  time  and  place  of 

hearing   Ill  539,  555 

must  qualify  by  taking  oath Ill  556 

unless  expressly  waived Ill  556 

how  waiver  must  be  made Ill  556 

failure  to  take  oath,  unless  waived,  a  jurisdic- 
tional  defect   Ill  556 

powers  and  duties  of Ill  557-558 

same  as  of  judge,  save  as  to  contempts ....  Ill  557 

may  adjourn   proceedings. Ill  557-558 

against  consent  of  parties Ill  557 

may   fix   time   and    place   of   adjourned 

hearing   Ill  558 

may  fix  time  and  place  of  original  hearing, 

when  left  to  him  by  order   Ill  558 

may  issue   subpoenas    Ill  558 

must   report    Ill  558 

hearing  before Ill  559-560 

who  may  be  examined Ill  559 

corporation  to  attend  by,  and  answer  under 

oath  of,  officer    Ill  559 

witnesses'  attendance  and  production  of  books 

compelled  by  subpoena Ill  559 

where  debtor  and  other  witnesses  may  be  re- 
quired to  attend Ill  559-560 


798  INDEX. 

bUPPLEMENTARY  PROCEEDINGS— (conHnued)  :         vol.  page. 

examination  of  witnesses Ill        560-564 

nature  and  scope  of Ill        560-562 

must  be  under   oath    Ill      559,  564 

must  be  full  and  complete    Ill  561 

extent  of  inquiry   left  to   discretion   of 

presiding  officer Ill  564 

where  property  is  claimed  by  third  per- 
son  Ill        561-562 

commission  may  issue  in,  to  take  testi- 
mony of  witnesses  without  the  state. Ill  562 
witnesses  have  same  privilege  as  in  civil 

action    Ill  562 

proper  correction  in  testimony  should  be 

allowed  by  referee Ill  562 

parties  may  stipulate  to  have  a  sten- 
ographer    Ill  562 

witness  not  excused  from  answering  on 
the  ground   that   it   will   incriminate 

him   Ill  563 

his  testimony  not  to  be  used  in  criminal 

action  or  proceeding   Ill  563 

such  testimony  may  be  used  in  civil  suit. Ill  563 

judgment  debtor  is  entitled  to  counsel .  .  Ill  564 

discretionary     with     judge     or     referee 

whether  other  witnesses  are   Ill  564 

privilege  of  attorney    Ill  564 

where  witness  refuses  to  testify,  or  is 
guilty  of  other  contempt,  referee 
must  report  facts  to  the  judge,  who 

may  punish  the  contempt Ill  557 

570-571 

report  of,  what  to  contain   Ill        569-570 

facts  to  be  reported,  or  evidence  certified . .  Ill        569-570 

oath  of  referee  or  waiver   Ill  569 

testimony  should  in  all  cases  be  certified..  .Ill        569-570 
how  times   and   places   of  hearings   and  ad- 
journments  fixed   Ill  570 

in  cases  of  contempts Ill        570-571 

effect  of Ill  571 

punishment  of  contempt    Ill        564-569 

refusal  to  obey  instruction  of  judge  or  ref- 

,       eree,  to  attend  in  response  to  subpoena,  to 

be  sworn,  or  answer  questions,  constitutes 

contempt Ill      564,  565 

such  contempt  punishable  by  judge  who 
made  the  order  for  examination  or  by 
court  at  special  term Ill        564-565 


INDEX.  799 

SUPPLEMENTARY  PROCEEDINGS— (co«iinwed)  :         vol.  page. 

referee  eaimot  punish,  nnist  report  facts  to 

court Ill  557 

570-571 

proceedings  for,  must  be  conducted  in  county 
where  supplementary  proceeding  was  in- 
stituted,  etc Ill  565 

judgment  creditor  camiot  take  testimony  of 
a  witness  in  a  proceeding  for,  as  for  use  on 
motion Ill  565 

proceedings  for,  same  as  in  any  other  pro- 
ceeding for  contempt Ill  565 

punishment  may  be   fine   and   imprisonment 

or  either HI  565 

disobedience  to  order  will  not  be  deemed  con- 
tempt in  case  of  impossibility  of  compli- 
ance    Ill  565 

nor  where  failure  to  comply  was  caused  by 

acts  of  adverse  party Ill  565 

nor  where  the   omission   was   accidental ....  Ill  566 

nor  where  order  void Ill  568 

nor  for  refusal  to  sign  his  testimony  where 

taken  down  incorrectly    Ill  562 

false  swearing  before  referee  is  not  a  con- 
tempt     Ill  566 

must  appear  that  evasively  testifying  im- 
paired right  of  judgment  creditor,  in  order 
to  constitute  contempt Ill  566 

what  disposition  of  property  constitutes  con- 
tempt     Ill        566-567 

title  of  property  cannot  be  tried  in  the  pro- 
ceeding  for   Ill  567 

failure  of  judgment  debtor  to  appear  on  ad- 
journed day,  is  contempt,  although  no  writ- 
ten notice  of  adjournment  served  on  him.  .Ill  568 

refusal  to  produce  books  in  response  to  sub- 
poena duces  tecum  constitutes  contempt .  .  Ill  568 

permitting  acts  of  others  may  constitute  con- 
tempt   Ill  569 

corporation  may  be  punished  for  contempt.  .Ill        568-569 

person  applying  for  order  for,  should  show 

his   interest Ill  568 

order  directing,  may  be  appealed  from Ill  568 

where  no  stay  of  proceedings  on  appeal, 
order  must  be  obeyed  notwithstanding  the 
appeal    Ill  569 


800  INDEX. 

SUPPLEMENTARY  PROCEEDINGS— (confwMed)  :         vol.  page. 

order  requiring  the  delivery  of  property   Ill  571-577 

by  judgment  debtor  or  third  person   Ill  571-575 

when  may  be  granted Ill  571-572 

by    judge  —  not    bj'    court    Ill  572,  575 

should  be  entitled  in  the  special   proceeding.  ...  Ill  575 

what  property  may  be  reached    Ill  572-575 

only  money  or  personal  property  in  the  hands 

of  the  judgment  debtor Ill  572 

or  specific  personal  property  in  the  hands  of 

third   person   Ill  571 

572-573 

instances  of  what  may  be  reached Ill  574 

exempt  property  cannot  be  reached Ill  572 

nor  money  not  due  at  the  time  of  service  of 

the  order   Ill  572,  573 

nor  real  property Ill  572 

nor  future  earnings Ill  573 

nor  earnings  for  sixty  days  before  service  of 

order   Ill  574 

nor  where  dispute  exists  as  to  ownership  of 

the   property Ill  574 

nor  property  outside  of  the  state   Ill  575 

is  mandatory Ill  575 

order  permitting  payment  by  one  indebted   to  judg- 
ment   debtor    Ill  575-577 

is  permissive  only Ill  575,  576 

when  may  be  granted Ill  575-576 

is  judge's  order,  not  court  order   Ill  575 

effect  of  payment  pursuant  to  such  order Ill  576-577 

duty  of  sherifi'  receiving  property    Ill  577-578 

is  same  as  if  property  collected  by  execution.  .  .  .Ill  577 

must  pay  over  to  receiver,  if  appointed Ill  578 

court  may  dispense  with  receivership  and  order 
money,   or   proceeds   of   property,   paid   by,   to 

judgment    creditor    Ill  578 

balance,  if  any,  to  whom  ordered  paid Ill  578 

cannot   apply   money   received   to   another   judg- 
ment,  against  judgment   creditor    Ill  578 

how  proceedings  discontinued Ill  579-580 

upon  application  of  judgment  creditor    Ill  579 

upon  application  of  judgment  debtor  or  another 
judgment  creditor  for  unreasonable  neglect  of 

judgment   creditor   to   proceed    Ill  579 

to  whom  notice  to  be  given Ill  579-580 

only   discontinued   by   order Ill  579 

not  discontinued  before  report  of  referee,  where 

has  been  reference  ordered    Ill  580 


INDEX.  gQl 


SUPPLEMENTARY  PROCEEDINGS- ( con  ^mt.ed)  :         vol. 

second  order  for  examination    jjj 

when  judgment  creditor  entitled  to 'm 

two  orders  cannot  be  in  force  at  same  time Ill 

costs   in   


582 


PAGE. 

580-581 

580-581 

581 

.,,.,,  in        581-583 

to  the  judgment  creditor    jjj  gg, 

allowed  by  order  of  judge    '  'm  ^gj 

amount   of jjj 

usually  made  payable  out  of   property  dis- 

^^^■"■ed    Ill  582 

application  not  made  till  after  termination 

of  proceedings jjt 

not  allowed  where  proceeding  becomes  dor- 
mant and  judgment  collected  by  new  exe- 
cution    .     .     .  TTT 

noi  where  judgment  debtor  pays  voluntarily. HI  582 

allowed  where  judgment  collected  by  new  ex- 
ecution after  appointment  of  receiver...   HI  53^ 
stenographer's  fees  not  taxable  save  by  stipu- 
lation   ....                                                                                TTT 

,      , ,      .    _  Ill  582 

to  the  judgment  debtor  or  third  person m 

allowed  by  order  of  judge .'.'..  Ill 

amount  of  t^t 

^  ,        „        •    ■ Ill      581,  583 

only  allowed  to  judgment   debtor   after   ex- 
amination   .    .  TTT 

Ill  583 

non-resident    judgment    creditor    cannot   be 

compelled  to  give  security  for  costs.  .  im  533 

to  third  person j.. 

how  collected ^^^  ^^"^ 

receiver  in ^^^ 

when  and  by  wh om  appointed  -  • . . . . .' . . . .' .' .' ."  .'m        ^^^'^^ 

not  until  order  for  examination .m 

may  be  on  examination  of  third  person.' !lll 
only  by  judge  who  made  the  order  for  ex- 
amination or  before  whom  it  is  return- 
able ...  _^^ 

,.        ,.  Ill        584-585 

discretionary  with  the  judge ni  535 

will  be  denied  where  debtor  has  no  prop- 
erty   applicable    to    payment    of    judg- 
ment    '^  J 

will  be  denied  where  debtor  has  real  prop- 
erty that  might  be  reached  on  execu- 
tion      TT.- 

^i„    ,,„  .    ;•• Ill        585-586 

will    be    appointed,    where    property    has 

been  placed  in  hands  of  third  person.. Ill  586 

51 


583 
583 


584r587 
584 
584 


H)'2  INDEX. 

bUTLJii-MEMAUY   i'liULKJJJlXCiS— ( cox/iuuct/ j  :  VOL.  PAGE, 
will  be  denied  where  judgment  has  been 
paid  pending  examination,  and  appoint- 
ment is  asked   to   collect  costs  of  pro- 
ceedings   Ill  587 

will  not  be  appointed  of  partnership  as- 
sets, where  one  of  partners  hjis  made  a 
separate     composition     with     judgment 

creditor HI  o87 

is  appointed  generally  for  all  property.  .Ill  586 

represents    both    judgment    debtor     and 

judgment  creditor Ill  597 

must  be  a  resident Ill  601 

appointment  of,  can  be  questioned  only  by 
judgment  debtor,  where  judge  has  jur- 
isdiction  Ill  586 

how     and     when     judgment     debtor 

should  object Ill        58G-587 

order  appointing,  is  appealable HI  587 

application  for  the  order Ill       587-590 

upon  what  notice  to  the  judgment  debtor. Ill       587,588 

when  may  be  dispensed  with Ill      587,  588 

what  must  be  shown  to  justify  appoint- 
ment  without   notice Ill  589 

notice  of,  must  also  be  given  to  a  receiver 
appointed  in  any  other  judgment  cred- 
itor's action  or  supplementary  proceed- 
ing   Ill  587 

what  notice  of  must  be  given  to  other 
creditors  who  have  begun  other  supple- 
mentary proceedings Ill  589 

notice  may  be  less  than  eight  days Ill  589 

what  papers  required  on  application Ill  589 

the  order  appointing Ill       590-592 

is  judge's  order Ill  590 

what  should  recite  and  direct Ill  590 

is  presumed  regular  until  annulled Ill  590 

recitals  in,  showing  jurisdiction  prima  facie 

evidence Ill       589,  590 

must  be  filed  and  recorded  to  vest  title  in 

receiver Ill       590-592 

perfects  inchoate  lien  obtained  by  original 

order Ill  542 

security  to  be  given  by Ill        592-593 

what  must  be Ill  592 

property    does    not    vest    in,    until    bond 

given Ill  593 


INDEX.  803 

SUPPLEMENTARY  PROCEEDINGS— (conftnMeeZ)  :         vol.  page. 

irregularity   in   undertaking  can   only  be 
talien     advantage     of     by     judgment 

debtor Ill  593 

new  security  not  required   on   extending 

receivership Ill  593 

what  property  vests  in Ill        593-600 

all  that  judgment  debtor  has Ill       593-594 

interest  in  real  property  passes   to,   without 

conveyance Ill  594 

what  interest  in  real  property  passes  to Ill       594-595 

not  real  property  without  the  state Ill  596 

not  real  property  upon  which  the  judgment  is 

a  lien Ill  597 

does  not  get  title  to  property  acquired  after 

commencement   of   proceeding Ill  595 

various  kinds  of  personal  property  that  pass 

to Ill  595 

rules  as  to  mortgaged  or  incumbered  chattel. Ill       595-596 

property  in  possession  of  third  persons Ill  596 

as  to  a  judgment  obtained  by  judgment  debtor 

for  conversion  of  exempt'  property Ill       596-597 

may  bring  action  to  set  aside  fraudulent  as- 
signment, etc Ill  597 

in  such  actions,  stands  in  place  of  cred- 
itor   Ill  597 

can  only  recover  in  such  action  enough  to 

pay  judgment ill  •"iOS 

may  bring  such  actions  as  debtor  could  have 

brought Ill  598 

cannot  bring  action  to  reach  surplus  income  of 
trust  fund  created  by  some  one  other  than 

judgment'  debtor Ill  598 

nor  to  enforce  resulting  trust  for  benefit 

of  creditors Ill  598 

when  may  bring  action  to  recover  on  life  in- 
surance policies f Ill  599 

rule   when    appointed    in    two    different    pi'o- 

ceedings Ill  599 

may  employ  attorney  of  jiidgment  creditor.  .Ill  599 

may  be  substituted  as  plaintiff  in  action  be- 

gxm  by  debtor Ill  599 

must  obtain  leave  to  sue Ill  599 

must  show  valid  appointment Ill  600 

security  for  costs  by Ill  600 

costs  in  actions  by  or  against Ill  600 

when  title  of.  relates  back Ill        600-602 

to  what  time Ill        600-601 


804 


INDEX. 


SUPPLEMENTARY  PROCEEDINGS— (co«<t«ued)  :         vol. 
with  refereuce  to  bona  fule  purchaser  without 

uotice Ill 

extending  receivership Ill 

to  whom  notice  of  application  for  such  exten- 
sion should  be  given Ill 

cannot  he  after  judgment  debtor's  death Ill 

mere  delay  of  prior  creditor  does  not  justify 
subordination  of  prior  proceedings  to  subse- 
quent   Ill 

conti'ol   of  court  over Ill 

court  —  not  judge    Ill 

what'  may  direct Ill 

may  fix  compensation Ill 


GOl-602 
602-603 

602 
G02-003 


603 

603-604 
603 

603-604 
604 


SUPREME  COURT: 
appellate  division. 

convention    of   justices    of,   to   malie   general 

rules  

in  each  department  may  mal^e  rules 

terms  of 

to  designate  times  and  places  of  special  and 

trial  terms 

to   assign   justices   to   hold   special   and   trial 

tei-ms 

may  designate  justice  of  same  department  to 

prevent  term  failing 

no  judge  of,  to  sit  in  review  of  his  own  de- 
cision   

clerk  of,  how  appointed  and  where  to  have 

office 

seal  of  

duties  of  clerics  of 

power  of,  over  attorneys  and  counsellors 

appeals  from,  to  court  of  appeals 

appointments  of 

how  constituted 

powers  of  justices  of 

powers  of 

may  hear  any  motion  that  a  special  term  may 

entertain  

appointment  of  terms 

terms  of,  must  be  held  at  times  and  places  ap- 
pointed   

term  held  by  justice  of  another  department,  duly 

designated,  valid 

extraordinarv  terms 


9 

15 

16 
16 
17 
35 
62 
64 
64 
64 
65 

248 

7,8 


INDEX. 


805 


SUPREME  COURT—  ( continued )  :  vol. 

special  terms. 

to  be  held  at  times  and  places  designated  by 

appellate  division I 

designations  valid  though  after  time  named  in 

statute  

one  to  be  hold  in  each  county  each  year 

place   of   holding   to   be   that  designated   for 

county  court  

may  be  adjourned  to  chambers 

motion  to  be  made  in,  and  where 

held  same  time  and  place  with  trial  term. . . . 
order  to  show  cause,  when  returnable  at. . . . 
trial  terms. 

jurisdiction  of  circuit  courts  vested  in 

times  and  places  of,  designated  by  appellate 

division 

designations  valid   though  after  time  named 

In  statute  

two  to  be  held  in  each  county  each  year 

two  or  more  held  at  same  time  in  any  county 

may  be  held  in  two  or  more  parts 

place   of   holding   to   be   that   designated   for 

county  court  

may  be  adjourned  to  chambers 

county  clerk  is  clerk  of 

power  to  suspend  or  remove  attorneys 

original   creation   of 

how   now  constituted  

appellate  divisions,  how  constituted 

powers  of  justices  of 

has  all  the  jurisdiction  of  certain  abolished  courts 

has  general  jurisdiction  in  law  and  equity 

given  by  the  constitution 

extent  of  

in  equity,  what  it  includes 

in  special  cases  

when  it  may  remove  to   itself,   actions  from   other 

courts 

for  what  equity  business,  it  is  always  open 

justices  of,  what'  they  may  do  out  of  court 

may  change  place  of  trial   in   action   brought  in 

local  court I 

may  change  place  of  trial  brought  in  city  court  of 

Ne"w  York I 

may  change  place  of  trial  brought  in  count.v  court  I 


8 

8 

9 
9 

248 
249 
265 

3,4 


8 

8 

9 
9 
16 
30 
63 
63 
64 
65 
3 
65 
65 
66 
66 
66 

67 
67 

77 

147-148 

148 
148-149 


806  INDEX. 

SirivEAll!:  COUKT — [continued):                                            VOL.  PAGE, 
appeal  may  be  taken  to,  from  liual  or  iulerlocu- 
tory  judgment,  or  order  of  city  court  of  city  of 
New    Yorli,   where   appeal   would   lie   from    su- 
preme   court    judgment    or    order    to    appellate 

division II  881-882 

notice  of  appeal  in  sucb  cases II  885 

when  ajjpeal  must  be  taken II  885 

security  on  such  appeal II  886 

hearing  uf  such  appeal II  888-889 

questions  which  may  be  raised  on  such  appeal  II  889 

judgment  on  such  appeal,  where  entered II  8'JU 

nature  of  review  in,  on  such  appeal,  similar  to  that 
In  appellate  division  on  appeals  from  supreme 

court  orders  or  judgments II  882 

appeal  may  be  allowed  by,  to  appellate  division, 

from  determination  on  such  appeal II  882-883 

Sec  Apppkllate  DivisiOxV. 

SURETY: 

on  appeal II  794-795 

796-797 
SURPLUS  MONEYS: 

on  foreclosure,  to  be  paid  into  court Ill  143, 146 

distribution  of,  controlled  by  the  court Ill  146 

belong  to  owner  of  equity  of  redemption  unless 

claims  filed Ill  146 

if  no  application  therefor  witTiin  three  months,  to 

be  invested Ill  146 

are  regarded  as  real   estate Ill  151 

claim  for,  how  and  by  whom  filed Ill  146-147 

reference  to  ascertain  rights  to Ill  147 

motion  for Ill  147, 148 

to  whom  and  how  notice  of  given Ill  147 

148, 149 
is  merely  a  proceeding  in  the  action,   not  a 

special  proceeding Ill  147 

when  may  be  had Ill  148 

in  what  court Ill  148 

moving  party  must  show  liens Ill  149 

proceedings  before  referee  on Ill  149-151 

what  persons  entitled  to  notice  of  hearing  be- 
fore referee Ill  149 

who  may  appear  before  referee Ill  150 

powers   of   referee   on Ill  150-151 

report  of  referee  on,  what  to  contain Ill  151 

motion     to     confirm     and     confirmation     of 

referee's  report  on Ill  152 


INDEX.  807 

SURPRISE:     '                                                                       VOL.  page. 

new  trial  for II  484-488 

^'ce  New  Trial. 

SURROGATE: 

when  disqualified I  13 

not  to  practice  as  attorney  in  certain  counties.  ...     I  15 

not  disqualified  by  age I  16 

clerk  of,  how  appointed I  16 

leave  to  sue  otficial  bond  of I  126 

leave  of,  for  infant  to  bring  action  of  partition. ...     I  133 

when  may  grant  commission II  46 

certificate  of  probate  by,  evidence II  97 

cannot  be  referee II  416 

cannot  compel  security  for  costs II  520 

may   award   costs   on   determination   of   rejected 

claim Ill  359 

decree  of.  directing  payment  of  money  may  be  en- 
forced by  supplementary  proceedings Ill  505-506 

SURROGATE'S  COURT: 

limitation  of  action  on  judgments  of I  91 

fees  of  clerk  of II  665 

who  may  appeal  from  decree  or  order  of II  917-919 

who  is  person  "aggrieved" II  917-918 

facts  authorizing  appeal,  how  to  be  shown...  II  918-921 

who  are  persons  "  interested  "  in  decree II  918 

what  decree  or  order  of.  may  be  appealed II  919-920 

intermediate  order,  when  may  be  reviewed  on  ap- 
peal from  final  decree II  810-813 

921,  931 
appeal   from   intermediate   order  lies,   when   sub- 
stantial right  involved II  919-920 

appellate  division  to  review  certain  determinations 
of    surrogate,    as    though    original    application 

made  to  tliat  court II  920,  931 

appeal  from,  to  be  taken  to  appellate  division  of 

supreme  court II  920 

appeal  to  be  taken  within  what  time II  921 

notice  of  appeal,  what'  to  contain II  921 

where  appeal  taken  by  a  person  not  a  party, 
affidavit  showing  facts  entitling  person  to 

appeal    must   be   served II  921 

service  of  notice II  922 

how  person  not  party  may  be  brought  in  on 

appeal II  922 

notice  must  be  served  on  all  persons  interested 

in  decree TI  923 


808  INDEX. 

bURKOCATE'S  COIKT — (continue):                                    vol.  page.' 

security  to  perfect  appeal  from II  924-925 

wheu  required  to  stay  proceediugs II  025-920 

proceediugs  when  stayed  by  perfected  appeal  II  92G-927 

undertaking  on  appeal  from  decree  of II  927-928 

amount  of II  928 

when  issue  of  letters  testamentary  or  of  adminis- 
tration not  stayed  by  appeal II  928-929 

decree  revoking  letters,  etc.,  not  stayed  by  appeal.   II  929 
authority  of  executors  or  administrators  pending 

appeal II  928-929 

case  necessary  on  appeal  from  decree  rendered 

after  trial  of  issue  of  fact II  930 

effect  of  failure  to  make  case II  930,  932 

papers  on  appeal II  930 

what  questions  may  be  raised  on  appeal  from II  930-933 

law  or  fact  may  be  reviewed  on  appeal  from.  ...  II  931 
appellate  court  may  decide  questions  of  fact  as 

original  questions II  931 

decision  of  surrogate  must  have  been  filed II  931,932 

when  findings  by  surrogate  necessary II  932 

when  new  evidence  heard  by  appellate  court'.  ...   II  931,  933 

how  appeal  heard II  933 

judgment  or  order  upon  appeal  from II  933-935 

*  principles  of  determination  of  appeal II  934 

wheu  trial  by  jury  must  be  ordered  on  reversal  of 

probate  of  will II  934-935 

not  ordered  where  reversal  is  on  questions  of 

law  only II  935 

proper  order  in  such  cases II  935 

entry  of  appellate  division  order  and  transmission 

of  copy  thereof II  935 

when  leave  granted  to  issue  execution  after  judg- 
ment debtor's  death II  973-978 

See  ExKCUTioN. 
has  no  jurisdiction  of  action  for  admeasurement 

of  dower Ill  102 

code  provision  for  action  to  recover  a  legacy  or 

distributive  share,  not  applicable  to Ill  352 

SURVEY: 

when   ordered   in    ejectment Ill  18-19 

in  action  relating  to  real  property Ill  18-19 

See  Ejectment. 

fees  for  making,  in  partition II  662 

III  83 
court  may  order,  in  action  for  admeasurement  of 

dower TIT  108 


INDEX.  809 


SURVIVAL  OF  ACTIONS: 

See  Abatement  of  Actions. 


T. 

TALESMEN:                                                                                 vol.  page. 

how  procured   )    II  292-294 

TAXATION  OF  COSTS: 

to   be   by    clerk    II  645-646 

when  to  be  by  judge II  645-646 

when  to  be  inserted  in  judgment  II  646-647 

duty  of  clerk  upon II  647-648 

only  items  allowed  by  statute  to  be  taxed  on II  647 

notice    of   II  648 

when   may   be   postponed II  648 

affidavit  of  disbursements   II  649-650 

not  to  be  without  affidavit   II  649 

to  be  served  with  notice  of  taxation II  650 

See  Disbursements. 

objections  to,  when  taken   II  650-651 

how  to  be  stated   II  650-651 

when  party  not  concluded  by  failure  to  object..   II  651 

retaxation  when  costs  taxed  without  notice II  651-652 

785-786 

when  court  will  direct,  in  its  discretion II  652 

to  be  reviewed  by  motion  for  retaxation II  652 

proper  remedy  for  error  in  taxation II  652 

where  and  when  motion  for,  to  be  made II  652 

what  is  waiver  of  right  to  review  taxation Ill  652-653 

what  papers  to  be  used  on   II  653-654 

what  objections  to  be  taken  on II  653-654 

right  to  costs  cannot  be  raised  upon II  654 

what  order  may  be  made  upon II  654-655 

when  new  taxation  will  be  directed II  654 

order  on  motion  for  new  taxation  appealable  to 

appellate  division II  655 

TAXES: 

assessment  of,  will  not  be  restrained  by  injunction..      I  572 

supplementary  proceedings  may  be  had  to  collect.  .  .  .Ill  504-505 

TAXPAYER : 

may  sue  to  prevent  waste    I  156 

action  by  to  prevent  waste    Ill  444-456 

history  of  statutory  provision  as  to Ill  444-445 

who  may  maintain  such   action    Ill  445-446 

448 


810  INDEX. 

TAXPAYER—  ( continued )  :                                                        VOL.  page, 

for  what  may  be  maintained   Ill  446-452 

laches   may  defeat    Ill  449 

all  alleged  illegal  acts  may  be  stated  in  one  com- 
plaint     Ill  452 

complaint  in,  how  to  allege  facts   Ill  452 

security   for   costs   in    Ill  452-453 

requirement  is  mandatory   Ill  452 

what  is  a  sufficient  undertaking   Ill  453 

where   insufficient  bond   is   filed,   court  may 
permit  a   sufficient  one  to  be   filed   nunc 

pro  tunc Ill  453 

who  must  be  made  defendant  in   Ill  453-454 

proceedings  in  the  action    Ill  454-455 

when   injunction   may   be   granted I  567 

III  454-455 
books  of  municipality  open  to  inspection  of 

taxpayer Ill  455 

judgment   in   Ill  455-456 

how  to  be  entered    Ill  455 

what  relief  may  be  granted  in Ill  455-456 

individual  judgment  against  defendant . Ill  456 

costs  in Ill  456 

TENANT: 

when   may   pay  or  redeem   in   ejectment  for   rent  in 

arrear    Ill  27-28 

(S'ee  Ejectment. 

TENANT  IN  COMMON: 

complaint  in  ejectment  against   Ill  13,  14 

may  bring  partition Ill  33-37 

action  by,  against  co-tenant,  for  waste   Ill  191 

193-194 
action  by,  against  co-tenant,  to  recover  share  of  rents 

and  profits HI  198-199 

when  may  maintain  replevin  against  co-tenant Ill  208 

TENDER: 

in  what  cases  may  be  made I  754 

how  to  be  made I  755 

kind  of  money  in  which  made   I  755,  756 

offer  of  money,  when  waived I  756 

to  whom  made I  756 

money  must  be  paid  into  court   I  756 

effect  of I  758 

as  admission  of  right  of  plaintiff  to  amount.  ...      I  758 

as    to    costs    I  759 

when  to  be  deducted  from  recovery   I  759 

in  action  for  foreclosure   Ill  137 

effect  of Ill  137 


INDEX.  811 

TERMINATING  ACTION  WITHOUT  TRIAL.     See  Dis- 
continuance. 

TESTIMONY.     See  Examination  before  Trial. 

THIRD  PARTY: 

claim  of,  in  replevin,  see  Replevin. 

TIME: 

of  limitation   of   action   accrued   between   death   and 

granting  of  letters   I  105 

how  computed  where  plaintiff  dies  before  expiration 

of  limitation   I  106 

when  reversal  of  judgment  extends,  to  bring  action.  .      I  108 
to  bring  action,  when  extended  by  stay  of  proceed- 
ings         I  108 

when  extended  by  submission  to  arbitration I  109 

how  computed  under  statute  of  limitations I  111 

See,  also,  Limitation  of  Action, 

within  which  infant  defendant  may  answer I  235 

for  doing  any  act,  how  computed   I  292 

extension,  see  Extension  of  Time. 

how  alleged  in  pleadings   I  324 

within  which  motion  for  provisional  remedy  to  be  de- 
cided        I  752 

when  offer  of  compromise  to  be  accepted I  769 

to  apply  for  relief  against  mistakes   I  796 

for  motion  to  vacate  judgment  for  irregularity I  802 

TITLE: 

to  real  property,  presumption  as  to   I  85 

to  real  property,  may  be  tried  in  partition Ill     30,  35-37 

48-49 

TORT: 

arrest  in  action  for,  see  Arrest  and  Bail. 

when  restrained  by  injunction   I  577 

costs  of  plaintiff  in  action  for  certain II        547-548 

judgment  cannot  be  confessed  for    II  756 

TOWN: 

actions  by,  when  brought  in  name  of  I  156 

TOWN   CLERK: 

copies  of  papers  in  office  of,  when  evidence II  111 

TOWN  OFFICERS : 

when  may  sue  or  be  sued   I  155 

TRADEMARKS : 

when  violation  of,  will  be  restrained   I  573 


8 1 2  INDEX, 

TREASON:                                                                                   VOL.  page. 

who  plaintiffs  in  action  upon  forfeiture  for I  154 

TRESPASS: 

when  restrained  by  injunction    I  576 

TRESPASSER: 

action  for  timber  cut  by   Ill  199-201 

wlien  treble  damages  recoverable  in Ill  199-201 

TRIAL: 

when  of  one  action,  stayed  to  abide  event  of  another.      I  307 
after  substitution,  objection  that  action  does  not  sur- 
vive may  be  taken  at I  818 

action  does  not  abate  after  decision  or  verdict I  829 

decision  upon,  void,  if  made  after  death  of  party.  ...     I  831 

when  discovery  granted  to  enable  party  to  prepare  for     I  840 
See,  also,  Discovery  of  Books  and  Papers. 
place  of,  see  Place  of  Trial. 

of  issues  of  law    II  212,  270 

of  issues  of  fact II  212-224 

what  actions  triable  by  jury   II  212-216 

mode  of,  a  substantial  right    II  213 

mode  of,  determined  by  complaint   II  214-215 

217 

mode  of,  where  equitable  defenses   II  215 

mode  of,  when  legal  and  equitable  causes  joined II  214 

215-216 

of  issue  of  fact  by  the  court  II  216-218 

a  substantial  right II  217 

what  actions  triable  by  the  court   I  217-218 

mode  where  counterclaim  interposed    II  218-219 

by  jury  in  such  cases,  how  obtained  by  defendant  II  219 

right  to  particular  mode  of,  how  waived II  219-221 

266,  409 

of  issues,  order  of    II  222-224 

separate,   between   plaintiff   and   one   of   several    de- 
fendants      II  222,  223 

of  issues   remaining  after  trial  of  issues  settled  by 

jury II  223-224 

preparation  for  ,see  Preparatio;?  for  Trial. 

pleadings  for  court  on,  by  whom  furnished II  233,  270 

notice  of,  see  Notice  of  Trial. 

when  postponement  should  be  applied  for II  250 

postponement  of,  see  Postponement  of  Trial. 

who  may  bring  on    II  258,  270 

when  party  noticing  must  pay  costs,  if  not  moved. ...   II  258 


INDEX.  813 

TRIAL — (continued)  :                                                                  vol.  page. 

reserving  cause  for   II  259,  270 

See  Inquest. 
See  Default. 
See  Teial  by  Juby. 

See  Trial  of  Issues  of  Fact  by  Court. 
new,  see  New  Trial. 

costs  on,  of  issue  of  law,  or  fact II  607-610 

See  Costs. 

of  issues  in  ejectment    Ill  19 

in   partition    Ill  50-51 

in  action  for  admeasurement  of  dower Ill  108 

in  foreclosure   HI  131-132 

of  action  to  foreclose  lien  on  chattel Ill  158 

of  issues   in   action   for   determination   of   conflicting 

claims  to  real  property   Ill  181,  182 

of  action  of  waste Ill  188 

of  action  of  nuisance   II  213-214 

of  action  of  replevin    Ill  218 

of  issues,  in  action  for  divorce    Ill  275 

of  action   for  separation    Ill  293 

of  action  to  annul  corporation   Ill  344 

of  action  by  creditor  of  decedent  against  next  of  kin 

or  legatee Ill  375 

of  action  to  establish  a  will   Ill  389 

of  action  to  determine  the  validity  of  probate  of  will .  HI  398 

of  judgment  creditor's  action    Ill  428 

of  action  against  usurper  of  office  or  franchise Ill  489-490 

TRIAL  BY  JURY: 

See  Trial  Jurors. 

how  jury  drawn II  290-291 

talesmen,  how  procured   II  292-294 

who  to  summon,  when  sheriff  a  party II  293 

challenge  on,  either  party  may  interpose II  294 

kinds  of  challenge II  294 

to  array,  what  is II  294 

when  must  be  taken   II  295 

what  cause  of  challenge  to  array   II  295-296 

challenge  to  the  polls,  what  is II  296 

kinds  of II  296 

challenge  for  principal  cause,  grounds  of II  296-299 

that  juror  is  related  to  party II  297 

opinion,  how  far  ground  of  challenge II  297-298 

challenge  for  favor,  what  is   II  299 

grounds  of II  299-300 

by  whom  tried II  300 

juror  may  be  examined   upon    II  300 


814  INDEX. 

TRIAL  BY  JUj-.Y — (continued):                                           vol.  page. 

peremptory  challenge,  what  is II  300 

each  party  may  have  six II  301 

waiver   of  challenge    II  301 

motion  for  judgment  on  pleadings,  when  made II  302 

ground  of  such  motion II  302 

construction  of  pleadings  on    II  302 

to  compel  party  to  elect,  motion  for   II  303-304 

right  to  open  and  close   II  304-306 

in  action  to  determine  the  validity  of  the  probate 

of  a  will Ill  399 

beginning  of  the  trial    II  306 

opening  by  the  plaintiff,  nature  of   II  306-307 

dismissal  of  complaint  on  opening II  307-308 

party  opening  must  exhaust  evidence II  308 

examination  of  witnesses  on,  see  Witness. 

defendants  opening II  308 

subsequent  proceedings  of  trial   II  308-309 

how  right  to  trial  by  jury  waived II  219-221 

266,  409 
See  Jury. 
See,  also.  Trial. 

when  ordered  in  equity  case II  227-228 

right  to,  not  lost  though  issues  not  settled II  225 

motion  for  nonsuit,  when  made   II  308 

cross-examination  of  witness  on    II  316 

purpose   of   cross-examination    II  316-317 

right  to,  absolute II  317 

penalty  where  a  party  deprived  of   II  317 

how  far  in  discretion  of  court II  317-318 

party  may,  as  to  whole  case   II  318 

proof  of  contradictory  statements  upon II  318-319 

to    be    shown    contradictory    writings    on    which 

cross-examined    II  319 

answers  on  cross-examination  as  to  collateral  matters 

conclusive II  319 

number  of  expert  witnesses  may  be  limited   II  314-315 

expert  may  be  examined  as   to   contradictory  state- 
ments        II  319 

cross-examination  as  to  hostility    II  320 

as  to  conviction  of  crime    II  320 

as  to  other  matters  discrediting  witness II  320-321 

what  witness  may  refuse  to  answer II  321 

cross-examination  of  impeaching  witness II  324 

redirect  examination  of,  see  Witness. 
impeaching  witnesses,  see  Witness. 

rebutting   testimony   II  308-309 

reopening  of  case  in  discretion  of  court II  309 


INDEX.  815 

TRIAL  BY  JVRY— {continued)  :                                               vol.  page. 

burden  of  proof,  on  whom  lies   II  309-310 

order  of  proof,  how  far  discretionary   II  310-311 

view  of  premises    II  312 

when  leading  questions  allowed  on  direct II  314 

number  of  witnesses,  when  limited   II  314-315 

how  far  examination  may  be  limited  by  court II  315 

papers,  proof  or  use  of,  on  trial,  see  Papers. 

pleadings  on,  how  far  evidence    II  326 

memorandum,  how  far  may  be  used  by  witness  to  re- 
fresh  memory II  314 

326-328 

judge  presiding  at,  cannot  be  called  as  witness II  328 

juror  may  be  sworn  as  witness   II  329 

motion  for  verdict  for  nonjoinder  of  parties II  329-331 

when  complaint  dismissed  for    II  330-331 

nonsuit  on,  see  Nonsuit. 

withdrawal  of  juror  on,  when  allowed    II  332 

terms    of    allowance    II  332 

ordering  verdict,  see  Verdict. 

offers  of  evidence    II  342-344 

not    usually    permitted    II  343 

construed   with  great   strictness    II  343 

party  making,  must  show  clearly  propriety  of . .  .  II  344 

objections  on,  what  may  be  taken   II  344 

when  objection  must  be  decided    II  344 

to  competency  of  witness  when  taken.' II  344 

how  made  after  testimony  taken II  344-345 

349,  351 

general  objection,  what  is II  346 

effect  of   II  346 

what  may  be  raised  by   II  345 

special  objection,  what  points  must  be  raised  by II  346-347 

incompetency,  because  of  personal   transaction II  347 

objection  by  one,  where  two  or  more  defendants II  347 

effect  of  overruling  untenable  objection    II  347 

exceptions  on,  to  what  may  be  taken   II  343 

upon  decision  on  challenge  to  juror II  343 

not  taken  to  ruling  on  question  of  fact II  348 

if  not  taken,  objection  waived   II  348 

office  of II  349 

not   valid   unless   actually   taken,   or  allowed   by 

court   "^.11  349 

will  not  lie  to  exercise  of  discretion II  349-350 

exceptions  to  improper  remarks  in  summing  up.  II  350 

354-355 

cannot  be  taken  to  order  denying  new  trial II  351 


816  INDEX. 

TRIAL  BY  JURY— {continued)  :  vol.  page. 
motions   to   strike  out  testimony   or   have   jury  dis- 
regard it '. II 

when  they  may  be  made II 

granting  usually  discretionary II 

when  party  entitled  to  have  granted   II 

summing  up  by  counsel,  absolute  right  of  party II 

how  to  review  improper  remarks  in   II 

time  allowed  in  discretion  of  court II 

when  several  counsel  allowed  for  different  defendants  II 

privilege  of  counsel  upon  summing  up II 

books,  etc.,  not  allowed  to  be  read  by  counsel  on .    II 

when  question  of  fact  for  the  jury  arises   II 

what  questions  of  fact  to  be  decided  by  the  court.  .  .    II 
when  specific  questions  of  fact  may  be  submitted.  ...   II 

pending  decision  of  motion  for  nonsuit,  etc II 

charge,  court  to  decide  what  questions  to  be  submitted 

to  jury II 

court  not  bound  to,  unless  requested II 

what  to  be  submitted  in   II 

how  far  opinion  of  judge  may  be  stated  on II 

rule  of  damages  to  be  stated  on   II 

whether  effect  of  verdict  on  costs  to  be  stated  on.   II 
when  required  to  charge  upon  material  questions  II 

instructions  should  be  public   II 

requests  to  charge,  when  to  be  presented II 

how  to  be  presented   II 

what  to  be  presented Ill 

what  requests  may  be  refused   II 

when  not  error  to  refuse  request   II 

exception  to,  when  to  be  taken   II 

manner  of  taking    II 

what  exception  to,  good  II 

consultation  of  jury   II 

what  papers  may  be  given  to  jury  on II 

jury  may  return  for  further  instruction II 

further  instructions  must  be  given  when  asked.   II 
what  court  may  do  to  procure  agreement  of  jury.  ...   II 

may  discharge  jury  if  unable  to  agree II 

effect  of  interference  with  jury   II 

verdict  of,  see  Verdict. 

applications  after  verdict   II 

for  increased  damages    II 

for  certificate  as  to  costs,  etc II 

for    additional    allowance    II 

for  stay  of  proceedings    II 


351-353 

351 

351 

351-353 

353 

350,  354- 

355,  476 

353 

353-354 

354-356 

354 

357 

357,  358 

359-361 

360-361 

362 

302 

362 

362-363 

363-304 

364 

304 

305,  372 

305 

365-366 

366 

366 

366-367 

367-368 

368 

369-371 

371 

371-372 

372 

372-373 

373-374 

374 

374 

383 

383 

383 

383 

383 

INDEX.  817 

TRIAL  BY  JJ5RY— {continued)  :                                             vol.  page. 

to  enable  party  to  review  trial   II  383-384 

entry  of  judgment  on  verdict,  see  Judgment. 
directing  exceptions  on,  to  be  heard  at  appellate  di- 
vision   II  384 

when  ordered  on  reversal  of  decree  admitting  will  to 

probate II  934-935 

TRIAL  FEE : 

when  payable I  19 

TRIAL  JUROR: 

qualification   of,   generally    II  278-279 

qualification  of,  in  New  York  city   II  279-280 

who  is  resident  in  New  York  city II  280 

qualification  of,  in  Kings  county    II  280 

who  disqualified  to  be   II  280 

who  exempt  from  service  as    II  280-282 

in  New  York  county    II  283-284 

in  Kings  county II  284 

evidence  of  right  to  exemption   II  282-283 

exemption  not  a  disqualification   II  284 

when  b,allot  of,  must  be  destroyed   II  285 

when  person  returned  as,  must  be  excused II  285 

challenges  of,  see  Trial  by  Jury. 

calling,  as  a  witness    II  329 

withdrawal   of    II  332 

See,  also.  Juror. 

TRIAL  OF  ISSUES  OF  FACT  BY  THE  COURT: 

at  what  term  had II  38G 

stipulation  for,  at  other  place  than  court  house. .  II  386 

preliminary  proceedings  upon II  386 

new  trial  for  erroneous  admission  or  exclusion  of 

evidence  on II  387 

reservation  of  ruling II  387 

exceptions  during  trial II  387 

should   be   begun   and   finished   before   the   same 

judge II  387-388 

evidence  must  be  taken  before  court II  388 

413-414,  428 

effect  of,  where  taken  by  referee II  388 

decision  must  be  in  writing II  389 

must  be  filed  within  twenty  days,  etc II  389 

effect  of  lack  of  decision,  or  failure  to  file II  389-390 

736 

form  of,  under  the  present  statute II  391-392 

history  of  statute  governing II  391-392 

52 


818 


INDEX. 


TlilAL    OF    ISSUES    OF    h\\(  V     \;\     rnK    COURT— 

(continued):                                                                                   ^OL.  page. 

forui  of  rdi'iiu'i'  "  .sliurt  r(jiiii  "  (iccisimi n  .■;'j2-;i9.'} 

must  dirc'ci  judyuu'ui n  393 

whether  order  sigued  by  clerk   is II  394 

by   whom  usually  drrt wn II  394 

exeeplious  to  decision  ol',   wiiat  can  be  taken II  .'59,5 

must  be  taken  within  ten  days H  .-^o,-) 

history  of  statutes  governing II  SD.j-HOS 

must  be  filed  to  review  law II  .398 

need  not  be  filed  to  review  facts II  398 

requisites  of.  under  present  statute II  399-400 

requisites    of.    to    former    "  short -form  "    de- 
cisions    II  400-401 

judgment  after II  735-73G 

TRIAL  OF  ISSUES  OF  LAW: 

.S'ee  Demurrer  and  Issues. 
(S'ee,  also.  Trial. 

TRIAL  TERM: 

when  writ  of  inquiry  executed  at',  and  how II  728 

8ce  Supreme  Court. 

TRUSTEE: 

action    against    for    debt    of    corporation,     when 

barred I  100 

counterclaim,  in  action  by  or  against I  4.51 

receiver  in  action  against I  709 

in  bankruptcy,  when  required  to  give  security  for 

costs II  519-520 

security  for  costs  in  action  by  or  against' II  525-.527 

of  school  district,  costs  in  action  against II  569 

costs  in  action  by  or  against II  571-573 

wlieu  will  be  personally  charged  with  costs II  573-.574 

may  file  notice  of  ownersliip  of  judgment II  705 

effect  of  such   notice II  705 

cannot  confess  judgment II  756 

when  may  sue  in  ejectment HI  10 

TRUSTEE  OF   EXPRESS  TRI  ST: 

when  maj"  sue  as  plaintiff I  157 

who  is I  1.58 

assignee     for  creditor I  158 

assignee  of  life  insurance  policy I  158 

commission  merchants I  158 

general  agent'  of  incorporated  association....  I  1.58 

trustees  in  subscri])tion  paper I  158 

general  guardian  of  infant I  1.59 

other  cases I  159 


INDEX. 


819 


U. 

UNDERTAKING:  '  vol.  page. 

attorney  shall  uot  be  surely  upon I         37.  208 

in  contempt  i)rocee(linss.  action  on.  in  whose  name 

brought    I  lo4 

requisites  of I       207,  209 

substantial  compliance  with  statute  sufficient....  I  303 

when  one  surety  sufficient I  297 

by  fidelity  or  surety  company,  when  permitted.  ..  I  298 

when  will  be  approved I  298 

approval  of  bond  discretionary I  299 

justification  of  sureties  on,  how  made I  299 

what  proof  sufficient  on I  209 

where  penalty  is  over  five  thousand  dollars I  302 

court  must  require  proof I  301 

court  may  appoint  referee  to  take I  301 

must  be  approved I  302 

must  be  filed I       291. 303 

defective,  may  be  amended I  303 

action  on,  by  whom  and  when  brought I  304 

on  arrest  and  bail I  509 

on  injunction  to  stay  proceedings  in  action I  594 

to  stay  proceedings  upon  judgment I  594 

to  stay  proceedings  in  ejectment  or  dower. ...  I  595 

on  attachment  must  be  given I  640 

on  motion  to  discharge  property  from  attachment  I  685 
on  attachment,  when  delivery  of  property  to  de- 
fendant    I  695 

by   receiver  of   corporation I  737 

amendment  of I  788 

on  security  for  costs,  see  Security  fob  Costs. 

on  appeal,  see  Appeal  and  Security  on  Appeal. 

reference  on  approval  of II  412 

amount  paid  for,  not  taxable II  640 

to  prevent  sale  of  real  estate  in  action  for  specific 

performance  of  contract,  etc II  833 

in  replevin,  see  Replevin. 

UNINCORPORATED  ASSOCIATIONS : 

action  by  or  against,  sec  -Toint  Stock  Associa- 

TIOX. 

UNITED  STATES: 

records  of  courts  and  departnionts  of.  see  Record. 

UNKNOWN  DEFENDANT.     See  Defendant. 

USURPER  OF  OFFICE: 

action  against Ill        473-496 

substitute"  for  old  writ  of  quo   warranto Ill  473 

is  a  legal  action Ill  474 


820 


INDEX. 


USURPER  OF  OFFICE— {continued)  :  vol. 

nature  of  the  remedy Ill 

is  only  method  of  trying  title  to  office Ill 

question  of  title  cannot  be  tried  in  certiorari Ill 

nor  in  mandamus Ill 

nor  in  proceeding  to  compel  delivery  of  books, 

etc.,  of  office Ill 

nor  in  taxpayer's  action Ill 

court  has  jurisdiction  of,  in  all  cases  where  the 

question  of  title  to  office  arises Ill 

courts  of  equity  have  no  jurisdiction  to  try  title  to 
office Ill 

when  attorney-general  may  maintain  the  action.  .Ill 

people  necessary  parties  plaintiff I 

III 

against  whom,  may  be  brought Ill 

only   against   officer   in   actual   possession    of 

office  Ill 

where  brought  against  corporation  to  test  its 

validity,  user  must  be  shown Ill 

rightful  claimant  may  be  joined  as  defendant. Ill 

questions  that  may  be  tried  in Ill 

wrong  to  the  people  must  be  shown  in Ill 

can  only  be  brought  where  the  right  conferred  by 

statute Ill 

statutory  provisions  as  to,  do  not  apply  to  unincor- 
porated associations Ill 

attorney-general  may  maintain  the  action  on  his 
own  information  or  on  the  relation  of  a  private 

person Ill 

cannot  be  compelled  to  bring  the  action Ill 

security  for  costs  from  relator Ill 

complaint  in,  what  to  contain Ill 

may  name  person  entitled  to  office Ill 

where  action  brought  on  relation  of  private 
person,  relator  must  be  named  in  title,  etc.  .Ill 

answer Ill 

must  show  by  what  right  defendant  holds  the 

office Ill 

place  of  trial   of II 

III 

order  of  arrest  in .  . .  ." Ill 

injunction  in Ill 

triable  by  jury II 

III 


PAGE. 

474 

474-475 

477 

480 
4S0 

480 
480 

475-476 

474 

481-482 

471-477 

153 

477 

477-478 

477-478 

480-481 

481-482 

478-482 

478 

481 

482 


483 

483-484 
485 
485 

486-487 
483 

485 

487 

487 
131 
488 

488-489 
489 
213 

489-490 


INDEX.  821 

USUEPER  OF  OFFICE— (coniinwed)  :                                  VOL.  page. 

judgmeut  iu: Ill  491-493 

must  restrain  defeudant Ill  491 

must  oust  liim  from  office,  in  proper  case Ill  491 

luay  award  fine  against  defendant Ill  491 

where  action  against  corporation,  may  direct 
costs  to  be  paid  by  persons  claiming  to  be 

corporation Ill  491-492 

effect  of  judgment  of  ouster Ill  492 

rightful   claimant   may   recover  damages   against 

wrongful  holder Ill  492-493 

how  successful  relator  put  in  possession  of  office. Ill  493 
proceedings  if  occupant  of  office  refuses  t'o  deliver 

books  and  papers Ill  493-495 

restitution  may  be  ordered  in,  on  reversal Ill  49.5 

costs  in Ill  495-496 

USURY: 

to  recover  back,  when  action  barred I  100 


V. 

VALIDITY: 

action  to  determine,  of  probate  of  will,  see  Will. 

VARIANCE: 

what  is  material I  370 

VENUE.     See  Place  and  Trial. 

VERDICT: 

may  be  received  on  Sunday I  4,  5 

reversed  where  received  by  a  judge  not  sitting. ...     I  14 

appellate  division  judge  cannot  receive I  64 

amendment  of I  793 

what  defects  cured  by I  805 

action  does  not  abate  after I  829 

void  if  taken  after  death  of  party I  831 

setting  aside,  for  irregularities  in  formation  of  jury  II  292 

effect  of  ordering II  3.39 

when  court  may  order II  339-340 

subject  to  opinion  of  court,  when  may  direct II  340-342 

when  mistrial  to  direct II  341 

on  hearing  at  appellate  division,  what  questions 

raised II  342 

on  specific  question II  359-361 

court  may  order  sealed II  373 

.>~-n--j;^'..\\v:i^ 


S22  INDEX. 

A'EKDIL'T — (continued)  :                                                               vol,.  PAGE. 

settiug  aside  lor  interfi-ri'iice  Avitli  jury II  374 

478-481 

use  of  atliilavits  to  imijoaeli II  482-483 

general,  wliai  is II  374 

when  jury  may  render II  374-375 

when  may  be  rendered  against  less  than  all  de- 
fendants      II  375 

no  recommendalioiis.  etc..  to  be  addi'd  to II  .■{75 

special,  what  is II  37ti 

when  jury  may  be  required  to  hud II  37(3 

requirement  discretionary  with   the  court....    II  37(5 

what  to  contain 11  376-377 

how  (li'awn  up  and  settled II  377 

motion  for  judgment  on,  where  made II  7.34 

what  to  be  considered  on  hearing  of  such  mo- 
tion     II  734-735 

for  what  i)arty  judgment  may  be  ordered.  ...   II  735 

must  be  received  by  legally  constituted  court.  ...   II  .380-381 
may   be   taken,   though    neither   party,   nor   their 

counsel,  present II  381 

must  be  delivered  publicly II  381 

concurrence  of  twelve  jurors  necessary  to II  381 

how  and  where  received II  381-382 

polling  the  jury II  .382 

right  of  juror  to  dissent  from  verdict' II  382 

course  to  be  adopted  in  case  of  such  dissent.  .   II  .382 

how  far  may  be  reformed  by  court II  382-383 

entry  of,  by  clerk  after II  383 

judgment  on  general,  how  entered II  7.33-7.34 

form  of,  in  ejectment  II  377 

III  8,  20.  26 

in  action  for  admeasurement  of  dower Ill  108 

in  action  for  determination  of  conflicting  claims  to 

real  ])roperty II  .378 

III  182 

in  replevin II  379 

III  218-219 

in  action  of  divorce Ill  275 

VERIFICATION: 

of  pleading I  335 

when  required I  335 

■what  is  subsequent  pleading,  so  as  to  require.  ...      T  335 

dilatory  defense  must  have I  336 

not  sufficient'  affidavit  to  overthrow  notary's  cer- 
tificate       I  336 

when  necessary  to  require  party  to  prove  exist- 
ence of  corporation T  3.36 

In  answer,  may  refer  exclusively  to  counterclaim  .     I  337 


INDEX. 


823 


VERIFICATION— (cojt<j/i«ed)  :  vol. 

when  may  be  omitted I 

defendaut  charged  witli  fraud,  when  not  excused 

from  verifying  pleading I 

question  of  right  to  serve  pleading  without,  how 

determined I 

by  whom  to  be  made I 

how  made  by  domestic  corporation I 

in  action  where  people  are  party 1 

in  action  where  public  officer  is  party I 

when  may  be  made  by  agent  or  attorney I 

when  so  made,  omission  to  state  reasons,  fatal  I 
in   action   on   instrument   for  payment   of  money 

only I 

form  of I 

remedy  for  defective I 

VESSEL: 

attachment  against,  see  Att.vciiment. 

bill  of  sale,  or  mortgage  on,  how  proved II 

action  for  enforcement  of  mechanic's  lien  on Ill 

VIEW: 

of  premises II 

not  necessary  in  action  of  Avaste Ill 

VILLAGE: 

ordinance,  resolution,  by-law.  proceedings  of  board 
of  trustees,  how  proved II 

VOID: 

when  proceedings  are,  for  irregularity I 


I'AUE. 

337 

:'.38 
339 
339 
340 
340 
340 
344 

341 
342 
345 


121 
171 


312 

191 


114-115 


800 


W. 

WAIVER : 

of  invalidity  of  process  issued  on  Sunday,  when  made 

what  waived  hy  general  appearance   

of  defects  in  motion  papers   

of  stay,  for  non-payment  of  motion  costs 

right  to  amend,  how  waived   

of  privelege  from  arrest 

of  irregularity  

none,  without  knowledge  of  facts    

when  intention  of,  will  be  inferred   

of  right  to  trial  by  jury  I 

of  right  to  particidar  mode  of  trial I 


220, 


5 
233 
250 
281 
362 
504 
804 
805 
805 
219 
266 
409 


824  INDEX. 

VV.llVER — (continued):                                                             VOL.  page, 

of  preference II  246-247 

of  challenge  to  juror    II  301 

of  right  to  go  to  jury II  33G 

of  irregularities  in  report  of  referee   II  449 

of  right  to  appeal II  780-782 

WARD: 

may  maintain  waste  against  guardian    Ill  190 

WASTE: 

parties  to  action  for I  179 

when  restrained  by  injunction    I  578 

111  132 

in  what  county  action  to  be  brought II  127-130 

action  for,  to  be  tried  by  jury 11  212 

remedy  for,  of  purchaser  of  real  property  on  execution  II  1043-1044 
may  be   restrained   in   action   for   admeasurement  of 

dower    Ill  108 

may  be  stayed  in  action  of  foreclosure Ill  132 

defined Ill  'l87 

remedies  for,  at  common  law   Ill  188 

under  the   revised  statutes    Ill  188 

under  the  code  of   civil   procedure Ill  188 

in  what  courts  may  be  brought Ill  188 

where   triable Ill  188 

by  jury Ill  188 

proceedings   in    Ill  188 

191-192 

injunction  to  stay Ill  188 

who  may  be  plaintiff  in    Ill  189-190 

reversioner   or    remainderman    Ill  189 

heir  or  devisee Ill  189 

purchaser  at  execution  sale   Ill  189 

one  who  redeems  lands  sold  on  execution Ill  189 

ward,  against  guardian    Ill  190 

joint  tenant  or  tenant  in  common   Ill  190 

193-194 
judgment  creditor   before   sale,   cannot  maintain 

action   Ill  189 

against  whom  the  action  lies   Ill  190-191 

treble  damages,  when  may  be  recovered  in Ill  191,  192 

verdict  of  jury  to  be  for  single  damages Ill  192 

application  for  increased  damages Ill  192 

what  is  measure  of  damages Ill  192 

view  of  premises  not  necessary  in Ill  191 

judgment   in   Ill  192-193 

how   entered   and   docketed    Ill  192 


INDEX.  825 

WASTE — (conti7iued)  :                                                                VOL.  page. 

what  to  contain .Ill  192-193 

in  action  by  joint  tenant  or  tenant  in  com- 
mon    Ill  193-194 

WATER  RIGHTS: 

when  interference  with,  restrained   I  579 

WEATHER   BUREAU: 

records  of  N.  Y.  State  prima  facie  evidence II  110 

WIDOW: 

See  Dower. 

WIFE: 

may  partition  by  agreement  with  husband Ill  32-33 

See  Matrimonial  Actions. 

WILL: 

action  to  establish,  when  barred   I  93 

additional  allowance  in  action  for  construction  of .  .   II  623-624 

action  to  establish    Ill  385-392 

when  may  be  maintained    Ill  385-387 

history  of  jurisdiction  of  courts  over Ill  385-386 

courts    of    equity    have   no    general    jurisdiction 

over Ill  387 

who  may  bring  the  action Ill  387-388 

who  should  be  made  defendants Ill  388 

pleadings  in Ill  388 

proceedings   in    Ill  388 

receiver  may  be  appointed  in   Ill  388-389 

how  to  be  tried   Ill  389 

what  must  appear  to  entitle  plaintiff  to  judg- 
ment in Ill  389 

evidence  to  show  existence  of  will Ill  389,  390 

what  is  proof  of  fraudulent  destruction ....  Ill  389-390 

two  witnesses  required Ill  390 

judgment  in Ill  390-391 

when  must  direct  copy  of  will  to  be  re- 
corded,  etc Ill  391 

copy  of  will  must  be  incorporated  in.. Ill  391 

action  for  construction  of   Ill  392-395 

when  may  be  brought    Ill  392-395 

history  of  jurisdiction  of  court  over  such  action. Ill  392-394 

pleadings   in   Ill  395 

proceedings  in Ill  395 

parties   in Ill  395 


82G  INDEX. 

W 1 LL —  ( Qon t in ued)  :                                                                    VOL.  page. 

action  to  detenuine  validity  of  probate  of Ill  395-401 

when  and  by  wliom  such  action  may  be  brought. Ill  395-397 

history   of   code  provisions Ill  396 

may  be  brought  either  to  sustain  or  overthrow 

probate   Ill  39G 

what  facts  show  requisite  interest  in  maintain- 
ing or  overthrowing  probate    Ill  396-397 

how   time,  within   wliich  action   must  be  begun, 

reckoned    lit  397 

parties  defendant ill  398 

proceedings  in  the  action   Ill  389-399 

summons  and  complaint  to  be  filed Ill  398 

copy  of  all  proceedings  in  surrogate's  court 
to  be  certified  to  court  in  which  action  is 

pending Ill  398 

what  issue  pleadings   confined   to Ill  398 

triable  by  jury Ill  398 

elfect  of  decree  of  surrogate  on Ill  399,  400 

who  to  open  and  close   Ill  399 

receiver  cannot  be  appointed   in Ill  399 

judgment Ill  399-401 

by  default,   how   entered    Ill  399 

efTect  of Ill  400 

what,  shall  provide   Ill  399-400 

what   actions   and   proceedings    a   judg- 
ment in  such  an  action  bar Ill  400 

may  provide  for  additional  allowance ..  Ill  401 

WITNESS. 

non-resident,  privileged  from  service  of  summons.  ...      I  201 

resident,  not   so   privileged    1  202 

when  privileged  from  arrest   I  502 

8cc  Examination  befoke  Tuial. 
See  Commission. 
See  Subpoena. 

must  be   subpoenaed   II  78 

what  court  may  issue  subpoena    II  79-80 

how  subpoena  served  .    11  80-81 

when  subpoena  served II  82-83 

fees  upon  must  be  paid   II  80,  83 

amount  of  fees II  81-82 

fees  of,  how  may  be  waived II  81 

when  party  entitled  to  witness  fees II  82 

entitled  to  fees  for  each  day   II  82 

duty  of,  upon  subpoena II  82-83 

excuse  for  non-attendance    II  82 

must  remain  present  in  court   II  83 


INDEX.  827 

WITNESS — (continued)  :                                                              VOL.  page. 

need  not  remain  next  day  unless  fees  paid   II  83 

need  not  be  sworn  unless  fees  paid   II  83 

how  compelled  to  produce  document  II  83-85 

when  relieved  from  order  to  produce II  85 

fees  upon  subpoena  duces  tecum  or  order II  84-85 

duties  of,  upon II  85 

/S'ee  Subpoena  Duces  Tecum. 

habeas  corpus,  to  bring  up,  to  testify II  90-94 

/S'ee  Habeas  Corpus. 

absence  of,  when  ground  to  postpone  trial 11  250-252 

examination  of II  312-313 

cross-examination  of,  see  Trial  by  Jury. 

only  one  counsel  to  examine II  314 

where  leading  question  to  be  allowed II  314 

recollection  of,  how  refreshed II  314 

redirect  examination   of 11  321-322 

impeachment  of,  how  done II  322 

by  proof  of  bad  character II  322-323 

specific  acts  cannot  be  proven   to  show  bad 

character II  323 

cross-  examination  of  impeaching  witness II  324 

sustaining  witnesses  II  324 

how  far  party  can  impeach  his  own II  322 

must  produce  paper  if  subpoenaed  to  do  so II  325 

how  far  memory  may  be  refreshed  by  memoran- 
dum     Ii  314 

326-328 

opposite  party  may  inspect  memorandum  used.  ...   II  328 

judge  presiding  cannot  be  called  as II  328 

juror  may  be  sworn  as II  329 

objections  to  competency  of.  to  give  certain  kinds 

of  evidence II  345.  346 

referee  may  not  be  sworn  as II  42.'> 

absence  of.  as  ground  for  nevr  trial II  484-485 

may  be  subpoenaed  to  appear  before  referee II  424 

upon  reference,  when  testimony  of  to  be  signed.  .  II  437 

fees  of.  when  allowed  as  disbursements IT  633-635 

640 

fees  of,  upon  subpoena II  676 

fees  of.  when  deposition  taken TI  676 

party  not  entitled  to  fees  as IT  676 

WRIT: 

amendment  of I  "81 

WRIT  OF  Af=?f?ISTANCE: 

when  refused  in  action  to  enforce  mechanic's  lion. TIT  163 


828 


INDEX. 


WIUT  OF  EKKOR: 

abolished 

distinction  between,  and  appeal 

WRIT  OF  INQUIRY: 

defined  

bow  tested  and  when  returnable 

against  whom  executed 

may  be  executed  at  trial  term 

duty  of  judge  in  such  cases 

jury  on,  where  drawn 

duty  of  sheriff  where  writ  directed  to  him 

when  notice  of  hearing  required 

must  be  executed  within  the  county 

hearing  may  be  adjourned  by  sheriff 

when  defendant  entitled  to  costs  on  adjournment. 

jury  on  execution  of  writ 

proceedings  upon  execution  of  writ 

what  defendant  may  prove  or  disprove 

inquisition 

how  proceedings  on  writ  reviewed 

motion  to  set  aside  inquisition  on 

for  what  irregularities  vacated 


PAGE. 

773 
773-774 


722 
722 

722-723 
723 
723 
723 

723-724 
723 
724 
724 
724 
724 

724-725 
724 
725 
729 
731 

731-732 


WRIT  OF  NUISANCE: 

See  Nuisance, 

WRIT  OF  WASTE: 

See  Waste. 


WRITINGS: 

proof  of  disputed,  by  comparison. 


II 


108 


li 


